If you are a researcher and do not have many citations, or you are not a researcher at all, you might still be able to qualify for an EB-2 NIW green card. There are some law firms that prefer to focus on national interest waiver cases for researchers with hundreds of citations for several reasons, including a possible offer of a money-back guarantee if the foreign national is denied. Accepting only clients with a heavy research and patent background may help to avoid an RFE (Request for Evidence) or denial.
However, there are plenty of non-researchers or Ph.D. students with just a few citations who have been approved for an EB2 NIW. It may be in the national interest of the USA to offer an NIW to a businessperson or entrepreneur, as well. These exceptional EB-2 NIW candidates may have other evidence of being well positioned to achieve their proposed endeavor besides research.
Thesis or Dissertation Research
Foreign nationals who have an advanced degree may have had to write and defend a thesis or dissertation as part of their graduation requirements. In addition to submitting the document as evidence with the EB-2 NIW petition letter, a national interest waiver candidate might also consider creating a Google Scholar or ResearchGate profile.
Those who are in professions where they create projects or case studies might also consider adding those to their ResearchGate profile, as there is space to do so.
What if you are in a business-related field and want an EB-2 NIW?
There are countless professions that are not related to research but still benefit the American public or the U.S. economy. Professionals in banking, project management, or business intelligence, for example, may be able to demonstrate that they are well positioned to achieve their proposed endeavor in the United States without research.
Some examples of persuasive evidence for a businessperson seeking a national interest waiver might include:
If one immigration law firm turns you down, try a different one
Even if you have submitted your profile to an immigration law firm, and they told you that you were not a fit as a client, it does not mean that you absolutely cannot get approved for a national interest waiver. Different EB-2 NIW attorneys may focus on one type of professional, such as researchers, athletes, or inventors.
If you believe that you meet the requirements for a national interest waiver, you might be surprised to find a green card lawyer that is interested in taking your NIW case if you keep looking.
An entrepreneur, whether already present in the United States on an E-2 treaty investor visa or looking to strike out on their own after some years in a professional role, might not be aware that they could qualify for an EB2 national interest waiver green card. USCIS recently provided additional guidance and suggestions for evidence that might be appropriate for an entrepreneur who would like an NIW green card.
If you are an entrepreneur, and you would like to apply for an EB-2 NIW, then you may benefit from some tips about the process. By reading below, you might also have some misconceptions about entrepreneur NIWs eradicated.
FYI – There is no SOC code for entrepreneur
Form I-140, the Immigrant Petition for Alien Workers, does ask for an SOC code for each primary beneficiary. An SOC is an occupational classification system to place jobs into categories.
Entering the word “entrepreneur” into the search bar of O*Net will not reveal any such job category. Therefore, an EB2 NIW candidate might choose the SOC code for General and Operations Manager or the general category of their business, such as a Computer Network Architect who is an entrepreneur with a consulting business.
EB-2 NIW Evidence for Entrepreneurs
USCIS states on their website and in the Policy Manual that they recognize that entrepreneurs may not have the typical EB 2 NIW type of evidence; however, this does not eliminate the requirements set forth in Matter of Dhanasar.
Entrepreneurs will still need to overcome the threshold criteria of the EB-2 before they can then establish that a national interest waiver of the job offer and labor certification requirements is warranted. Additionally, there may be some overlap between documentation supplied by a researcher or businessperson, such as awards or published materials about the EB-2 NIW candidate.
Entrepreneurs may also present evidence of ownership of their business, such as documents filed with the Secretary of State or their business plan. Those who are currently E-2 treaty investors at the time that they petition for an NIW may already have a lot of these documents on hand from when they filed their E-2 application.
Entrepreneur evidence that is not monetary
Regarding EB-2 national interest waiver evidence for entrepreneurs, the USCIS Policy Manual specifically states that an NIW beneficiary does not have to rely solely on money-related evidence. Of course, an entrepreneur is likely to present plenty of documentation concerning revenue generation, the Policy Manual indicates that other evidence will also be accepted by USCIS.
Metrics such as valuations, cash flow, customer adoption, and profitability may be excellent ways to show USCIS that you should receive a national interest waiver green card. However, other evidence can be equally important in demonstrating all three prongs of Dhanasar.
It can be difficult to demonstrate that you are well positioned to achieve your proposed endeavor in the USA unless USCIS knows what you are proposing to do. You might be unsure about how to present your future plans in the United States so that this proposal might qualify you for a national interest waiver of the job offer and labor certification requirements of the EB-2 immigrant visa.
What is an NIW proposed endeavor?
Under the framework that comes from a case called Matter of Dhanasar, after a foreign national established eligibility for EB-2 classification, USCIS may grant a national interest waiver if the following can be proven with evidence:
(1) The proposed endeavor has both substantial merit and national importance;
(2) The Beneficiary is well positioned to advance the proposed endeavor; and
(3) On balance, it would be beneficial to the United States to waive the job offer
and labor certification requirements.
To clearly delineate one’s proposed endeavor an EB-2 NIW candidate could write a one or two-page statement of their short and long-term goals in the United States after their case is processed. Step one in creating an EB2 NIW future plan could be to write a few paragraphs about their short-term goals, the United States and they give examples of things that they have already achieved to demonstrate that their goals will be easily reached. Then a few paragraphs about the long-term goals can be added toward the end of the essay with some sentences that point out prior accomplishments to show that they are capable of achieving their future goals.
What happens if you do not tell USCIS what your proposed endeavor is?
Some national interest waiver self-petitioners want to pick a proposed endeavor that they think that USCIS will like. But if it has little to do with their current work or research and does not dovetail with their advanced degree, it might be a struggle to establish that the candidate is well positioned to make good on their proposed endeavor.
If the NIW case is not cohesive, then a USCIS may issue a Request for Evidence (RFE) asking for a “model or plan for future activities” that further what the foreign national has already accomplished.
Ask an immigrant attorney for help.
If you are unclear about what your proposed endeavor should be, then your EB-2 NIW lawyer probably cannot tell you what your future should hold. Making up a future plan that you think will please a USCIS officer is not a genuine articulation of your qualifications.
However, if you need an objective eye on your resume and a review of your achievements, you might ask your NIW attorney for a consultation. They may see some national benefits of your work or research that you did not realize existed.
Even if you have compelling evidence that USCIS should grant you an EB2 national interest waiver green card, it might not mean much unless the immigration officer notices it. If they cannot find the documents that show that you meet the elements of Matter of Dhanasar, then it is possible, if not probable, that you will receive an RFE or NOID.
Therefore, it can be a wise move to organize your EB-2 NIW evidence for your case before mailing it to the USCIS service center. There is more than one method for doing so.
National Interest Waiver Exhibit List
One way to organize EB-2 NIW evidence prior to submission to USCIS is to make an exhibit list. The exhibit list can clearly show that a foreign national knows what an NIW is and the ways to meet the green card criteria.
The list might be divided into the following sections:
Then the EB-2 NIW beneficiary or their green card lawyer can list the items that are included below each of the above headings on the list.
Place the evidence behind each labeled page
After creating the EB2 NIW exhibit list, a foreign national can start putting the supporting evidence in order. They can place the items in each category behind labeled cover sheets with the labels in the categories from the exhibit list.
On March 1, 2022, President Biden gave his first State of the Union speech. Since he was speaking about his priorities for the USA, you might look to his address for quotes that support your arguments that your endeavors have national importance when writing an EB-2 NIW national interest waiver petition.
Because there is currently no premium processing for the EB2 NIW, your petition might not be read until next year’s State of the Union address. But the statements by President Biden in 2022 would still likely be his priorities next year, as well.
National Importance of Infrastructure
President Biden stated in his speech on March 1, 2022, that currently our infrastructure is ranked 13th in the world. He also said that Americans would not be able to compete for the jobs of the 21st century if this matter was not addresses.
A national interest waiver green card candidate might argue that they can train Americans to be competitive for jobs the 21st century. Biden also mentions the term “infrastructure decade.” Since the processing time for an EB-2 NIW green card is about 18 months without premium processing, this decade mentality may keep a foreign national’s role in boosting American infrastructure still relevant a year and a half from now if this EB2 timeline continues.
National Importance of Emerging Technologies and Manufacturing
Later in the 2022 State of the Union address, President Biden discussed what was recently enacted as the Bipartisan Innovation Law (Infrastructure Investment and Jobs Act). In citing the reasons that it was so important to make this legislation a law, Biden raised the topics of emerging technologies and American manufacturing.
The President announced that the Act would make record investments in emerging technologies and American manufacturing. He opined that STEM workers in the United States could operate some of the most sophisticated manufacturing in the world for items that include technology that we have yet to invent. Therefore, an EB-2 NIW beneficiary might be able to argue that their role in manufacturing, automation, or patented inventions may be in the national interest of the United States.
National Importance of Sustainability and Clean Energy
President Biden also covered the topic of clean energy covered in the State of the Union address, and particularly because of the rising costs of gasoline. He opined that clean energy could cut energy costs for families at an average of $500 a year.
He suggested the use of tax credits for Americans who weatherize their homes and businesses to be energy efficient. He also suggested that car makers lower the price of electric vehicles to save families another $80.00 a month because they would never have to pay at the gas pump again.
Therefore, this section of the State of the Union speech may be quotable in an EB-2 NIW petition letter or EB-2 NIW letter of recommendation for people who work in clean energy, the automotive industry, or even economists who can analyze the costs and benefits.
Check the White House Website
In addition to the State of the Union address, whitehouse.gov offers reprints of other Executive Branch speeches, fact sheets, and press releases. You may find just what you need on the White House website to show that your proposed endeavor has both substantial merit and national importance in your EB-2 NIW petition letter.
As you might be aware USCIS recently provided some new and additional guidance on the EB-2 with national interest waiver. Unfortunately, the Service has not yet sped up their processing times for the EB2 NIW nor implemented premium processing, but at least they have provided some new information on their policy manual.
Students getting master’s degrees, or those in Ph.D. programs, are encouraged to petition for a national interest waiver, especially those in STEM fields. However, the burden is on the petitioner to prove to USCIS that an EB-2 NIW should be approved. The USCIS policy manual for the national interest waiver has a variety of resources that are referenced in the footnotes that may be helpful for making a convincing argument that your EB-2 NIW should be approved. Below are three of them.
Where to Find the USCIS Policy Manual for National Interest Waiver
A straightforward way to find the USCIS Policy Manual and its section on the EB2 NIW is as follows:
National Strategy for Critical and Emerging Technologies for EB-2 NIW
One footnote from the policy manual section on the national interest waiver references the National Strategy for Critical and Emerging Technologies. A foreign national in a technical field can find a great deal of helpful information in this document.
On the last page of the strategic publication is a list of 20 critical and emerging fields. Those whose role is listed here can include this information in their EB-2 NIW petition letter.
Use Interim National Security Strategic Guidance for NIW
The new guidance regarding the national interest waiver also discusses national security. Therefore, if applicable to a graduate student, Ph.D. candidate or professional, the Interim National Security Strategic Guidance may be useful to reference in an NIW petition letter.
The document can be found at footnote #67 of the USCIS Policy Manual section on National Interest Waiver of the Job Offer. On page 9 of the Interim National Security Strategic Guidance is the start of the segment on national security. Here, persons in cybersecurity or financial risk might find persuasive arguments for demonstrating that it is sufficiently urgent for the USA to waive the job offer and labor certification requirement.
Memorandum on Research and Development Priorities
Researchers and those who have advanced degrees in STEM fields might find a wealth of information in the Memorandum on Research and Development Priorities, which is also identified in the footnotes of the USCIS Policy Manual section on National Interest Waiver of the Job Offer. There are several current topics that can be helpful in arguing that a foreign national’s proposed endeavor has substantial merit and national importance.
For example, this reference tool discusses pandemic readiness and prevention as a priority. Another part refers to the need for research and development around climate change.
Strategize with an EB2 NIW lawyer near you.
Although you can self-petition for a national interest waiver, it may be prudent to consult with an NIW attorney who handles such cases on a regular basis.
By explaining to the EB-2 national interest waiver lawyer in your area, or virtually, between the two of you, you can brainstorm some other resources for compelling arguments for your case.
When you are self-petitioning for a national interest waiver, you will want to make sure that you send your case to the correct USCIS service center or lockbox. The EB2 NIW processing times can be long because of the backlog that has been exacerbated by COVID-19.
When trying to obtain a national interest waiver, you will also be paying a high filing fee for the Form I-140. Therefore, it would be in your best interest to make you that you find the address to mail your form I-140.
Where do you find the filing address for the EB-2 NIW?
One easy place to find the filing addresses for the Form I-140, or for many USCIS forms, is to go to uscis.gov and click on “Forms.” Once on that page, foreign nationals or their immigration lawyers can click on “Filing Guidance,” then “Where to File,” and a list of types of forms will appear.
After clicking on the hyperlink for Form I-140, a variety of addresses will be shown on the subsequent page. Because of the lengthy EB2 NIW processing times, since there is no premium processing currently offered, many candidates chose the addresses in the first section, “Filing I-140 by itself.” However, there are different addresses for concurrent filing with adjustment of status forms and documents.
Which of the address choices should I pick for mailing my EB2 NIW case?
In addition to deciding whether to file the national interest waiver case by itself, or filing it concurrently with AOS documents, a foreign national should consider several other factors.
Those who wish to pay their filing fee with a credit card would need to send their EB2 NIW forms and supporting evidence to a USCIS lockbox. Additionally, the address to mail the immigration case using the U.S. Postal Service differs from the one for using an alternative shipping method.
You can always Ask Emma.
If you would like to ask a question on uscis.gov, you can type key words into the search bar. Ask Emma is the chat bot that might be able to provide an answer or point you in the right direction.
Of course, if you are working with a green card lawyer on your EB-2 NIW case, your immigration attorney can mail your national interest waiver package to USCIS for you. Then you can get your forms and evidence to the correct service center, and the EB-2 NIW processing time can begin.
The EB2 national interest waiver is an immigration benefit for which you can self-petition. Therefore, you might choose not to work with an immigration attorney near you to apply.
Even if you do choose to hire an EB-2 NIW lawyer you might want to become familiar with the cases that USCIS refers to when processing your petition and deciding whether it meets all criteria. The following are three cases that related to the national interest waiver.
Matter of Brantigan
Matter of Brantigan is a Board of Immigration Appeals case from way back in 1966. It says, in part that the burden is on the petitioner to establish eligibility for the immigration benefit.
Therefore, in the instance of the EB2 national interest waiver, the petitioner would generally be the foreign national or their green card lawyer. The petitioner will need to demonstrate with evidence that the foreign national is eligible for the national interest waiver.
Matter of Chawathe
An Administrative Appeals Office (AAO) decision from 2010, Matter of Chawathe discussed the standard of proof in an EB-2 NIW case. Unlike with a criminal proceeding where the standard is “beyond a reasonable doubt,” with the national interest waiver green card, the level of proof is by a “preponderance of the evidence.”
As is explained in the AAO decision, basically this means that the evidence should prove that it is more likely than not (or probably true) that the foreign national meets the criteria for a national interest waiver. Another way to view it is by considering the evidence as more than 50% likely to be true.
Matter of Dhanasar
Matter of Dhanasar, which is a 2016 case, established the new standards for the EB2 NIW, Prior to 2016, the standards were slightly different. Under these new criteria, after proving that the foreign national is eligible for an EB-2, they must show the following to USCIS:
(1) The proposed endeavor has both substantial merit and national importance;
(2) The Beneficiary is well positioned to advance
the proposed endeavor; and
(3) On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.
Talk with a green card lawyer
Immigration regulations, or interpretation of current laws, are subject to change. Therefore, it can be prudent to discuss your green card matter with an immigration attorney who keeps current on new developments in the courts and at USCIS.
An EB-2 NIW lawyer can also inform you about current processing times, whether premium processing is available, and if there have been changes to the USCIS filing fees.
A common question among foreign nationals who are applying for an employment-based green card is, “How many letters of recommendation will I need?” Of course, a general response from immigration attorneys is “It depends on your case.” No two NIW cases are exactly the same, so a thorough review of your background generally gives the green card lawyer a better idea of what will build a strong petition.
There is no set number of letters of recommendation that are required by USCIS. Therefore, the content, rather than the quantity, of the letters may be more important to create a compelling national interest waiver evidence package.
Common numbers of LORs
Three to five letters can be an adequate number of letters, especially when there is other evidence to support it. An EB2 NIW petition could have as many as 8 to 11 LORs and still receive an RFE.
Yet a strong national interest waiver petition could have as few as 3 to 5 letters of recommendation and still be approved. The letters of recommendation generally do not make or break a petition that otherwise meets the Dhanasar criteria.
Showing years of employment with letters
Those EB-2 NIW beneficiaries who have ten or more years of employment may need more letters of recommendation than other candidates. Such persons may want to provide supporting evidence of their decade or more of experience to show that they are well positioned to achieve their endeavors in the United States.
Persons who have had more jobs during the past ten years may need more LORs to demonstrate this employment. For example, someone who has changed positions every other year during the last decade might need five letters to establish these responsibilities. Letter of employment can be provided by human resources or a person in a supervisory role.
What USCIS does say about letters?
In the USCIS policy manual, the service indicates that a letter may be given some weight, but they should not be the “cornerstone of a successful claim.”
It can be important to have other objective evidence to go with an EB petition as well, rather than trying to get somebody to say something in their letter that will prove what a green card candidate has done without other documents to support the statements.
Your immigration attorney might help
Green card lawyers in your area have likely reviewed hundreds of letters of recommendation. Therefore, they may have ideas for what might be included in a letter of recommendation to strengthen your national interest waiver case.
At Gallagher Domanski, we draft one free letter of recommendation for your colleague to sign, and we also provide plenty of sample LORs. Both items are included in the flat-fee price of the EB-2 NIW petition.
If you are going through the EB2 national interest waiver green card petition process, you might be able to show USCIS that you are well positioned to achieve your goals in the United States in a variety of ways. One straightforward method to demonstrate that you are well positioned is by providing evidence of earning a high salary.
Since you are probably aware of the cost of an EB2 NIW filing costs and attorney billing, you are likely to command a fairly high level of compensation if you can afford these fees. The key; however, is to show the USCIS officer that you earn more than your peers.
How to Show Evidence of High Salary
USCIS officers have become accustomed to seeing certain documents as evidence of high salary and offering too many pieces of random paperwork can create confusion, doing more harm than good. Compelling documents include a W-2 tax form accompanied by paystubs for the portion of a year for which a W-2 is not yet available.
More speculative documents, such as a letter of offer of employment or agreement for stock options, tend to serve better as supplements to a W-2 and paycheck receipts, rather than being the sole examples of high salary.
How to show high salary compared to peers
Requests for Evidence from USCIS tend to consist of copied–and-pasted paragraphs that are common among the immigration petitions of a certain type. RFEs for an EB-2 NIW that cite high salary as an example of a green card candidate being well positioned tend to question the ways that salaries are compared to others.
General Salary Comparison to Peers
Many foreign nationals find the average salary for their profession from the U.S. Bureau of Labor Statistics. Additionally, O*Net, which provides a position’s SOC code, has a companion site called My Next Move.
Here, one can locate both the median salary for a particular role in the United States, as well as the highest salaries. However, there are additional ways to demonstrate high salary compared to peers with more specificity.
Salary Comparisons Based on Location and Experience
Job search websites such as Glassdoor, Indeed, and LinkedIn have a feature where someone can check salaries for certain roles in particular parts of the United States. Finding salary data for the exact city or metropolitan area where an EB2 NIW beneficiary works provides a more specific comparison to their own.
Additionally, if available, a foreign national can also provide USCIS with information on the average and highest salaries in their particular industry and/or with their number of years of experience. Providing this information with an EB-2 NIW petition letter and Form I-140 can help to avoid an RFE from USCIS.
Ask an immigration lawyer near you for help.
Although foreign nationals can self-petition for a national interest waiver, sometimes it can be worth it to retain an immigration lawyer who handles EB-2 NIW petitions on a regular basis. If you are interested in finding out if the national interest waiver might be a strong immigration option for you, you might consider taking our quiz or contacting us directly.
Letters of recommendation are commonly used as evidence that a foreign national should receive a national interest waiver to live and work in the United States. If you are seeking an EB-2 NIW you will likely need three to five letters of recommendation from employers, professors, colleagues, and others whom you have impressed during your career.
Because your potential recommenders are often as busy as you are, they may ask you to draft the letter yourself and provide it to them for signature and letterhead. But that then leaves you with the dilemma of how to write an EB2 NIW letter of recommendation, and you will likely look for sample LORs.
How to Begin an EB-2 NIW Letter of Recommendation
Since most foreign nationals provide USCIS with more than one letter of recommendation, each of the salutations on the EB-2 NIW LORs can vary, so that each of the 3-5 endorsements look different from each other. Some sample ways to begin a national interest waiver letter of recommendation include the following:
The second paragraph should be about the recommender
The second paragraph of an EB-2 NIW letter of recommendation will differ depending on the type of recommender. It should state the person’s name, their title, and a bit about their education. For an executive recommender, the second paragraph of a national interest waiver LOR may describe their career or any specific accomplishments that they have such as awards. An academic recommender’s letter of recommendation might list examples of notable published research or patents.
Although some sample NIW letters of recommendation may spend several pages on the kudos garnered by the recommender, spending too much time on these accomplishments can distract attention from the green card beneficiary. Although some discussion of the recommender’s education and awards can lend some credibility to the letter and show that this person’s opinion about you should carry some weight, ideally no more than two paragraphs about the recommender are likely necessary.
What are the EB2 NIW beneficiary’s, talents and qualifications?
After a few paragraphs about the signer of the NIW letter of recommendation, there can be a few sentences about how that person knows the EB-2 beneficiary. For example, they might be a work supervisor, a thesis advisor, or heard the EB2 NIW seeker speak at a conference.
Next would be several paragraphs on how the foreign national stands out from among their peers because they have specialties in the areas of X, Y, and Z. Mentions of a sampling of specific awards, memberships, published research, and citations, might also be appropriate items to include in this section of the EB-2 NIW letter of recommendation.
Substantial Merit and National Importance
Then it might be prudent to include a section on how the EB2 NIW beneficiary's work has substantial merit and national importance. Going on whitehouse.gov and congress.gov are excellent websites to find examples of national importance.
The information about substantial merit and national importance should read a natural, rather than quoted from the website. That way this section of the letter seems like more of a recommendation than a research paper.
Write a closing for the letter
The ending on an EB-2 national interest waiver letter of recommendation can be like any sample LOR. It can restate a vehement endorsement of the foreign national for a national interest waiver.
Finally, it can tell USCIS that they can feel free to contact the recommenders should any other information be needed or if there are questions. The signer of the letter should include their title and contact information.
Some EB2 NIW lawyers might draft a sample LOR
At Gallagher Domanski we offer our clients one free letter of recommendation. If you retain us to represent you for your national interest waiver petition, we will draft one letter of recommendation for you for free.
We will ask you for the name of the recommender and a link to an online profile for them, such as their LinkedIn profile. Contact us if you would like a free CV evaluation for your EB-2 NIW petition.
Photo by Element5 Digital from Pexels
The EB2 National Interest Waiver, as you might know, has three requirements which derive from Matter of Dhanasar. Many NIW seekers are highly familiar with the substantial merit, national importance, and well positioned criteria, but somehow the third prong of Dhanasar gets glossed over in their petition letter.
The third requirement listed is Dhanasar is that would be beneficial to the United States to waive the requirements of a job offer, and thus a labor certification. It would be to your credit to show USCIS that you meet this criterion as well when you apply for an EB2 NIW green card.
Job offer/labor certification is impractical
The first portion of establishing that the USA should waive the job offer and labor certification requirement can discuss its impracticality as it applies to the NIW seeker’s career. For example, a researcher might conduct research in more than one lab, depending on where grants are available for funding.
Additionally, someone who has a unique specialization that would not be clearly described in a labor certification can use this section of the petition letter to tell that fact to USCIS. Also, a foreign national who is an entrepreneur can point out in their petition letter that they are employing themselves and will be creating jobs in the United States.
Benefit the USA despite the availability of other qualified American workers
Although it might be arguable that there is a shortage of American workers in many fields, an EB-2 NIW self-petitioner can proceed with caution and include an argument that even if there were other qualified U.S. workers available, it would still benefit the USA to grant the national interest waiver.
One way to show that a foreign national will benefit the United States despite the availability of American workers is to cited statistics on the projected growth of the career. Searching for numbers in the Bureau of Labor Statistics Occupational Outlook Handbook at bls.gov/ooh is a marvelous way to establish potential future labor shortages in the coming decade.
Sufficiently urgent to warrant a waiver of the labor certification
Restating the national importance of the proposed endeavor in the United States can be a great way to establish the urgency of granting an EB-2 national interest waiver. Websites like whitehouse.gov and congress.gov may provide excellent examples of what is currently being discussed on the floor of Congress.
There could be an executive order that reflects the urgency of the endeavors, or perhaps President Biden mentioned the work in a speech. It may be prudent to discuss these facts in this part of the petition letter, even if it was listed in the section on substantial merit and national importance.
Talk to an immigration attorney with EB-2 NIW experience
Immigration lawyers who focus on green cards for highly skilled professionals may be able to provide you with valuable information on how you can achieve an EB-2 NIW. A capable NIW attorney in your area, or who is available remotely, may have prior clients in your field that have been successful in showing USCIS that they meet the Dhanasar criteria.
By discussing your qualifications with an EB2 NIW lawyer, you can also learn more about national interest waiver processing times and filing fees.
Attorney fees for a national interest waiver green card can be pricey. Even when you are self-petitioning for an EB-2 NIW yourself, you are still faced with the $700 Form I-140 filing fee for USCIS.
Lucky for you, there are some things that you can do to prepare for your NIW petition that are free or low-cost. For example, you might be able to show that you are well positioned through memberships without spending too much money.
Well positioned through memberships
Whether a foreign national is applying for the EB2 NIW or the EB1A extraordinary ability green card, one of the categories that can be established fairly easily is memberships.
Becoming a member of a professional organization, or more than one, might be an excellent way to show a broad network of colleagues in the United States. Of course, the topic of this article is to discuss how to do so without spending too much money. When professional organization dues are less expensive, an EB-2 NIW candidate may be more apt to join more than one organization.
Searching for what professional organization is appropriate for one’s career may involve some internet browsing. Tying “free membership professional organizations” in the search bar can lead to websites like Job Stars can lead to lists of professional memberships by career category.
Finding low-cost organizations to join that have the word “National” or “American” in their name can be a bonus. This can be one method to show that one is well positioned in the United States in an obvious manner.
There is another step...
National interest waiver seekers should not forget to search for the bylaws and include them with your petition. Along with the membership card or the “welcome to the group email,” an EB-2 NIW candidate can also attached bylaws of the professional organization to their green card petition as supporting evidence.
Locating the membership requirements, ethical standards, and grounds for disqualification in the bylaws of the professional group can help to establish that they require outstanding achievements of their members.
Communicate with your EB2 NIW Lawyer
Whether you are working with a national interest waiver attorney near you, or one whom you have retained through a remote law firm, it can be wise to communicate your current memberships with professional organizations, so that they can be used as evidence for your green card petition.
Your EB-2 NIW lawyer may be willing to brainstorm with you about some memberships in your industry that might be appropriate for your green card case.
With the current USCIS backlog the way that it has been since 2020, you might be wondering what the processing time will be for your EB-2 National Interest Waiver case. In the past the processing time for the EB-2 NIW was five to nine months, but things have changed, just as life as we know it is drastically different.
If you are a curious person, you might also ponder how the United States Citizenship and Immigration Service estimates what the case processing time will be. Although this knowledge will not likely make the EB2 processing timeline faster, at least you will be aware of how this estimate is determined.
History of USCIS Case Processing Time Estimation
USCIS has changed the way that they calculate average case handling timelines for some types of cases, including the EB2 NIW green card.
The Old Way
From 2009 through 2017, USCIS would use the “cycle time” method for all cases. They would take into account the entire group of receipt and pending case counts.
The way that USCIS explains it is that “Cycle time is the number of previous months of receipts it takes to equal the current month’s pending receipt volume.” They still use the cycle time method for determining average case processing times for some types of cases and forms, including the following:
The Updated Way
For purposes of the EB-2 NIW and subsequent adjustment of status, national interest waiver beneficiaries should be aware that in 2018 USCIS started using the “processing time” methodology.
For the Form I-140 that is mailed to USCIS with the EB2 NIW petition letter, as well as the I-485 (adjustment of status) and I-765 (work authorization/EAD), case processing times are calculated using the new method. That means that in a concurrent filing for an EB-2 NIW, only the Form I-131 for a travel document would be subject to the “cycle time” methodology for computing the processing time.
What is the EB2 NIW timeline, and how is the EB-2 NIW case processing time calculated?
When it comes to estimating the processing time for the national interest waiver, the EB-2 NIW is subject to the “processing time” methodology. This method for calculating NIW processing time tends to be more precise as it uses more recent data to determine the date range.
The service provides an estimated time range for when the case should have been processed, as well as a receipt date for which a beneficiary can submit a case inquiry if they have not received notice from USCIS. The lower number in the time range is the period that it generally takes to process 50% of the cases; whereas, the higher number is the number of months that it takes USCIS to process 93% of that type of case.
Be sure to share your current status and plans with your attorney
If you are not self-petitioning for your EB-2 NIW immigrant visa, then you are likely working with an immigration lawyer in your area or virtually. It can be prudent to share your current status with your green card attorney at the beginning of your case, as well as when your status will expire.
That way you can plan around EB-2 NIW case processing times accordingly, so that you can maintain your status in the United States. If you do not have an immigration attorney yet, or if you have questions about the national interest waiver, contact us.
It can feel incredibly frustrating to have filed your EB-2 NIW green card petition and waited the sometimes 18 months of processing time, only to receive a request for more evidence (RFE) or a Notice of Intent to Deny (NOID). Worse still is when you are diligent in responding to the RFE or NOID, and then you get denied by USCIS.
As with most failures; however, you can learn something from the green card denial. Either you can use the information gathered from USCIS to refile your case, or you can hire a new or different lawyer to do it for you.
Learning from an RFE
Since there is no premium processing on the EB-2 NIW green card petition at this time, you may not receive your RFE from USCIS until after about 18 months of processing time. After you respond to the RFE, if you receive a denial of your green card petition, you can still use the RFE letter as a bit of a “cheat sheet.”
Now you know what USCIS said was lacking in your original petition and the examples of evidence that you might provide to make the EB-2 NIW case approvable. So when you refile you can combine all of the evidence from both the original NIW petition and the RFE response.
Speak Their Language
Another goldmine that can be excavated from an RFE letter from USCIS is specific language. If USCIS cites a specific court holding or statute when stating that your EB-2 NIW is deficient, you can use that same language in your petition letter when you refile.
For example, here is a sample paragraph from an actual EB2 NIW green card RFE letter:
“Please submit evidence to establish that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. This balance was described in Dhanasar as on one hand protecting the domestic labor supply through the creation of the labor certification process, while on the other hand recognizing that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest. USCIS may evaluate factors including, but not limited to, the following:
Therefore, since USCIS gave you a “gift” in the form of bullet points, you can have headings in your refiled EB-2 NIW petition letter based on each of the five factors above that apply to you.
Asking an Immigration Attorney to Refile Your EB2 NIW Case
If you filed the first case on your own, you might consider consulting with an immigration attorney on your second EB-2 NIW green card filing. Often it is more difficult for an immigration lawyer to save your case by responding to your RFE than it is for her to rework and refile the NIW case.
If you would like some assistance with filing an EB-2 NIW green card immigration petition, this is the focus of Gallagher Domanski Professional Law Corporation. Jean Domanski is one of the few EB-2 NIW lawyers in the USA who has both an M.A. in Communications and is a member of MENSA. You can rest assured that your EB-2 NIW petition will be well written.
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If you are considering coming to the United States as a student, you may be still in the planning phase and feel confused about the alphabet of visas offered by the Department of Homeland Security (DHS). Unfortunately, the names of the visas do not correspond with the first letter of their purpose, in most cases.
This article will discuss the following to help you to plan your stay in the United States:
F visa vs. M visa
An F student visa covers a variety of educational categories. The U.S. Department of State lists the following:
F and M visas for spouses and children
Foreign nationals who are approved for an F or an M visa to the United States may be able to bring their marital partner and their unmarried minor children with them. These dependents would be issued an F-2 or an M-2 visa.
The children would be able to attend school while they are in the United States residing with their parents. Each dependent would be issued a Form I-20 by the main beneficiary’s education institution, so that they can apply for their visas.
Student Visa vs. Visitor Visa
Some may believe that they can circumvent the whole Form I-20 process by just arriving in the USA on a visitor visa and enrolling in school. Unfortunately, this will not work.
B1/B2 visitor visa holders are not authorized to go to school or work in the United States. Although a new student visa can be issued up to 120 days before the school program starts, an F or M visa holder may not enter the United States more than 30 days before the start of the instructional program. Alternatively, continuing F or M visa students may enter the United States at any time prior to the start of their program, so long as they are currently enrolled in an SEVP-approved program and in SEVIS.
Can you go from an F-1 or M-1 visa to a green card?
Although the intention for F-1 or M-1 students should be to depart the United States upon completion of their program, some may have the opportunity to remain in the USA. Many students do practical training, such as CPT, OPT, and/or STEM-OPT as part of their studies. This may lead to a dual intent H-1B visa through a sponsoring employer.
Those who are getting a master’s degree or a Ph.D. may want to consider applying for an EB-2 National Interest Waiver (NIW). Although the EB2 NIW processing time can be long because the NIW does not have premium processing right now, it might be worth the wait. You may contact Gallagher Domanski Professional Law Corporation for a free CV evaluation.
If you are in one of the second preference employment-based green card categories where you still have a long wait, you might be wondering if you can downgrade from your approved EB-2 to an EB-3. That prospect might be a possibility, so long as your EB-2 is not based on a national interest waiver.
Many green card beneficiaries think that if they are approved for a higher-level employment based category, they can automatically downgrade if that works better for them regarding their priority date and its standing in the visa bulletin. However, it is a bit more complicated than that.
What is a green card downgrade?
Employment-based green cards fall into several categories. For example, the EB-1A extraordinary ability green card is a first preference immigrant visa. The EB-2, as well as the EB-2 NIW national interest waiver, fall into second preference.
An EB-3 is a third preference green card that can have an later current priority date on the visa bulletin. When there is a later date on the visa bulletin for the EB-3 than the EB-2, some foreign national workers will be able to downgrade from second preference to third preference. But this strategy will not work for the EB-2 NIW green card.
Why you cannot downgrade from an EB-2 NIW to an EB-3
When you request an EB-2 green card with a national interest waiver, you are asking the United States Citizenship and Immigration Service (USCIS) to waive the job offer and labor certification requirement (PERM). If you succeed and are offered an EB-2 NIW green card, after what can be a lengthy processing time, then you would not likely have the job offer and labor certification that is required for the EB-3 permanent residency.
Therefore, persons from countries that do not have a current date on the visa bulletin for the EB-2 NIW sometimes prefer to try for an EB-1A extraordinary ability green card instead. Of course, this first preference immigrant visa has more stringent requirements.
Discuss your case with an employment-based green card lawyer
Some immigration attorneys focus their work on employment-based green cards and are willing to consult with you about your options.
If you are considering an EB-1, EB-2, or other petition for lawful permanent residency, why not get in touch with a green card lawyer near you?
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As an immigration attorney who is focused on the EB2 national interest waiver green card, I am often asked about how long it will take to get a case processed and approved by USCIS. Currently, if you ask me that question, I will generally say about 18 months. Although the EB2 NIW was once processed within 5 to 9 months, there is currently a huge backlog.
If you are hoping to pay for premium processing for your national interest waiver, unfortunately, that service is not currently available. No one is exactly sure when USCIS will start offering EB2 NIW beneficiaries more rapid results through premium processing. Even immigration lawyers in your area are not certain about what is happening with premium processing for the EB2 NIW.
EB2 NIW has been authorized for premium processing
In late September 2020, while the pandemic was in full force, Donald Trump was still the President of the United States, and the backlog was becoming a behemoth, changes were made to premium processing policy.
Continuing Appropriations Act, 2021
On September 30, 2020, former President Trump signed the Continuing Appropriations Act, 2021. As part of that Act, allowances were made to expand the premium processing program.
One of the most exciting provisions of the Act for immigration lawyers and their employment-based green card clients was the inclusion of the EB-2 NIW as a Form I-140 category that was eligible for premium processing. But then nothing happened.
Changes to premium processing filing fees
Effective October 19, 2020, many green card categories that were eligible for premium processing experienced a fee increase from $1,440 to $2,500, including the EB-1A extraordinary ability green card.
When USCIS implements premium processing for the EB-2 national interest waiver petitions, the cost will be $2,500, as well. This, of course, is in addition to the $700 filing fee for Form I-140.
Authorization for premium processing
Even when USCIS finally institutes premium processing for the EB2 NIW, the policy is not planned to be the same as for the EB1A extraordinary ability green card. Although the Form I-907 fee will also be $2,500, the national interest waiver is set to have a promised processing time of 45 days.
This is a much longer time compared to the 15 calendar days afforded by EB-1A premium processing. But it is certainly better than the current EB2 NIW processing time of 18 months or more.
Your guess is as good as mine
But who knows when the EB2 NIW premium processing program will be implemented by USCIS. Also, many are wondering if USCIS will allow for previously filed petitions to be upgraded.
Can these EB-2 NIW cases be removed from that large pile that many of us imagine that they are festering in and get processed within 45 days? If you have filed a national interest waiver green card petition, or you plan to, you may want to consult with an immigration attorney near you to find out the latest on premium processing.
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If you believe that you have to have a Ph.D. or at least a master’s degree to be eligible for an EB-2 second preference green card with a national interest waiver (NIW), you may be pleasantly surprised. Not everyone whose endeavors have substantial merit and national importance to the USA have that educational background.
In reality, the United States Citizenship and Immigration Service (USCIS) provides the following standard: “You may be eligible for an employment-based, second preference visa if you are a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability.”
Advanced Degree or Its Equivalent
The term “equivalent” may seem ambiguous to some noncitizens who are pursuing an EB-2 NIW. In actuality, the way that USCIS views it is fairly concrete.
To be considered by a USCIS officer as a foreign national with the significance of an advanced degree, one must have at least a bachelor’s degree in the field of application and at least five years of progressive experience in their area of expertise.
What does exceptional ability mean?
Noncitizen professionals who do not have an advanced degree in their area of career focus can still qualify for an EB-2 NIW. This is because there is an alternative way to achieve second preference status, exceptional ability.
USCIS provides several factors that may persuade a DHS adjudicator that an EB-2 NIW beneficiary has exceptional ability. The list below is not exhaustive.
National Interest Waiver
Someone who has a job offer and labor certification may be able to be approved for a second preference immigrant visa based on their advanced degree or exceptional ability. Those who wish to have the job offer and PERM waived can self-petition for an EB-2 NIW. One thing to keep in mind; however, if that the NIW processing time can be quite lengthy, as there is no premium processing being offered right now.
Since one of the three necessary elements for a national interest waiver is that the noncitizen is “well positioned to advance the proposed endeavor,” an EB-2 NIW self petitioner might consider using some of the exceptional ability criteria to demonstrate it. In this sense, they can meet both the thresholds of having exceptional ability and being well positioned.
Applying for an EB-2 NIW based on Exceptional Ability
If you do not have an advanced degree or its equivalent, or if you are not working in the field related to your education, you may still qualify for an EB-2 NIW. You have the option to self-petition for a national interest waiver, and you now have the information needed to gather your evidence.
Even if you are planning to petition for an EB-2 NIW yourself, it can be helpful to consult with an attorney before you begin. Gallagher Domanski Professional Law Corporation offers a free CV evaluation and has a dedicated Facebook Group, “EB-2 Self Petitioners.”
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When you are living and studying in the United States on an F-1 student visa, your wallet can empty out quickly. Out-of-state tuition, books, and housing add up, and your on-campus employment may not be much of a help.
Fortunately, the United States Citizenship and Immigration Service (USCIS) considers special situations that may warrant the granting of an Employment Authorization Document (EAD) to an F-1 visa student. Of course, this is done per their discretion, rather than a guarantee.
What does USCIS consider a special situation?
USCIS realizes that natural catastrophes and other extreme occurrences can affect one’s immigration needs. In such situations, CIS can consider certain requests on a case-by-case basis.
Some of the entreaties that USCIS will evaluate include those for delayed extensions or changes of status; fee waivers; and employment authorizations for F-1 visa students. This article will focus on the third type of request.
Severe Economic Hardship to F-1 Students
Caused by Unforeseen Circumstances
If an F-1 visa student experiences severe economic hardship because of unexpected circumstances that are out of their personal control, they can request an EAD card so that they can work off-campus and make more money. Some examples of unforeseen circumstances that USCIS considers include the following:
How an F-1 Student Can Apply for An EAD Card
An F-1 visa student who believes that they have a qualifying unforeseen circumstance can apply for an EAD card by filing Form I-765 with accompanying evidence of the hardship. Additionally, the Designated School Official (DSO) will need to complete the employment page on their Form I-20. This will show that they are eligible for off-campus employment due to severe economic hardship caused by unforeseen circumstances beyond their control.
An approved EAD card for an F-1 student is valid in one-year intervals until the expected date of graduation so long as the need for off-campus employment still exists.
Applying for Special Student Relief
Certain F-1 visa holders can also apply for special student relief that can allow them to receive an EAD card. Examples of students who might qualify for special relief include the following:
Students on an F-1 visa who believe that they might qualify for special relief should submit Form I-765 and their Form I-20 to USCIS with compelling evidence of their needs.
Ask an immigration attorney near you
If you are not sure whether your case might be considered by USCIS to be a special situation, or if you need help with presenting a compelling request to the immigration service, you might consider talking it over with an immigration lawyer near you. Gallagher Domanski Professional Law Corporation offers a free consultation. Just email us or visit our website. You can also join our Facebook group, “OPT to EB-2 NIW.”
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If you would like to achieve an employment-based green card, but you do not want to get a job offer and labor certification, the EB-2 national interest waiver might be for you. Foreign nationals are able to self-petition for this type of lawful permanent residency, even if they are living outside the United States.
Self petitioning; however, does not mean that an individual cannot access the experience of an immigration attorney. In fact, a lawyer who handles employment-based green cards can actually serve as the petitioner for the case, as well.
Matter of Dhanasar
In December 2016 the framework for the EB-2 national interest waiver changed as a result of Matter of Dhanasar, a case that sought to revamp the criteria for achieving a waiver of the job offer and labor certification requirement of an EB-2. What resulted is the current three-prong test for an NIW:
The second element for an EB-2 NIW, according to Dhanasar, is “that the foreign national is well positioned to advance the proposed endeavor.” But how does one show what their proposed endeavor is? And what qualifies as a proposed endeavor?
Fortunately, an EB-2 NIW candidate does not have to establish that their plans will definitely be successful in the United States once they are granted permanent residency. Therefore, the petitioner can submit a one-page future plan of their short and long term goals, or they can submit the large personal plan that has recently become popular among immigration tools merchants.
According to the Dhanasar case, being well positioned to achieve a proposed endeavor can be evidenced by “a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.” Other items can also assist in proving that a potential NIW beneficiary is well positioned.
Using EB-1A criteria to show that you are well-positioned
Although the EB-1A is a different type of green card that requires that a candidate be one of few who has risen to the top of their field, if an EB-2 NIW petitioner can show that a foreign national meets some of the criteria, this could demonstrate that they are well positioned. The EB-1A extraordinary ability green card requires that someone meet at least three of ten criteria.
If a second preference NIW candidate can show evidence that they fall into any of those ten criteria, they might be able to use that information to prove that they are well positioned. For example, they might submit examples of their published research, membership cards from professional organizations, or evidence of having judged the work of others. Moreover, letters of recommendation can be useful ways to show one’s stature in a particular industry.
Ask an EB-2 NIW immigration attorney near you
If you want to consult with an attorney before filing a second preference green card petition, it may be prudent to speak to one who handles the EB-2 NIW on a regular basis. After all, if you want really good Italian food, you do not go to a restaurant that has a diverse menu, right? You seek out a chef that prepares that type of cuisine on a regular basis.
If you are interested in reviewing a list of EB-1A evidence that might be used for your national interest waiver green card petition, Gallagher Domanski Professional Law Corporation offers one for free. Just email us or visit our website to ask for one.
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When your employment-based green card is finally approved by the United States Citizenship and Naturalization Service (USCIS), it is a wonderful day. However, it is not the end of the journey. The next step after approval of the Form I-140 petition is adjustment of status (AoS).
The steps in adjusting status to lawful permanent residency begin with filing more forms that have supporting evidence. Therefore, it can be helpful to have the assistance or advice of a skilled immigration attorney near you to make sure that all i’s are dotted and every t is crossed.
What is adjustment of status?
Adjustment of status, or AoS, can be used to apply for a green card if the foreign national is the United States. Those who are outside of the United States, must obtain the immigrant visa abroad through consular processing.
With an employment-based green card petition, some foreign nationals who are present in the USA prefer to file for AoS concurrently with their Form I-140 petition, so that they can remain in the country while it is being adjudicated by USCIS. This is done by filing Form I-485, Application to Register Permanent Residence or Adjust Status.
Form I-485, Application to Register Permanent Residence or Adjust Status, is a lengthy form that requires quite a bit of information. Status adjusters should be prepared to provide information about their addresses, present and former, their present and past employment, and facts about their parents and dependents.
The filing fee for Form I-485 is currently $1,140 for most foreign nationals, plus $85 for biometrics. Along with the form and the fees, an applicant for AoS will need to submit items that may include passport-sized photos, identification and civil documents, and proof of maintenance of status in the United States.
If a foreign national wants to travel outside the United States while the Form I-485 is pending, or if they need permission to work, there are two additional forms that might be filed. Form I-131, Application for Travel Document, and Form I-765, Application for Employment Authorization, may help to tide the status adjuster over until they officially receive their green card. A “combo card” might also be available to them that doubles as both an EAD card and a travel document.
What happens after you file Form I-485?
After USCIS receives your Form I-485, supporting documents, and any other related forms, you should receive a notice for a biometrics appointment. A biometrics appointment occurs at a local USCIS Application Support Center (ASC). On the date of the appointment a representative of USCIS will take fingerprints and a photograph and request that the foreign national sign documents.
If an adjustment of status interview is required, the foreign national will attend and should bring original copies of their documents. Occasionally, USCIS will issue a Request for Evidence (RFE) if certain items are still missing.
Consult with an immigration attorney near you
If you have already been approved for an employment-based green card, congratulations! You have overcome a large hurdle. But the process is not over yet, and you likely want to do everything right.
It may be beneficial to consult with a capable immigration lawyer about adjustment of status. Even if you decide to fill out the forms yourself, some law firms, such as Gallagher Domanski Professional Law Corporation, will be glad to check over your forms for a small fee.
If you are a professional or a researcher, and you want to achieve a green card without a job offer or labor certification, an EB-2 national interest waiver might be for you. You might believe that your work is quite meritorious and could benefit the USA, but that may not be enough.
United States Citizenship and Immigration Service (USCIS) officers tend to look for particular characteristics of a I-140 national interest waiver petition before they believe that it is approvable. Therefore, it can be beneficial to learn as much as you can about the EB-2 national interest waiver before applying for one. It is also prudent to at least consult with an immigration attorney in your area.
National Merit Defined
The laws regarding employment-based green cards are part of the Immigration and Nationality Act (INA). Additionally, guidance can be found in the USCIS Policy Manual.
Specifically, the EB-2 NIW regulations come from a 2016 court decision called Matter of Dhanasar. That case states that national importance can be based on prospective national, or even global, impact. The Dhanasar decision also says that: “Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance.”
Ways to Show National Merit for an EB-2 NIW
USCIS officers will not likely put much weight on statements that the applicant makes about the national importance of their own work. More objective evidence can be more persuasive.
Find Some News Articles
Locating articles in mainstream publications, such as Newsweek, Forbes, or Time can be one way to show national importance. Many EB-2 NIW beneficiaries like to print out the articles to send to USCIS with the petition letter.
Another idea is to provide links to the articles within the text of the petition letter. As it stated in the Dhanasar case, endeavors that are newsworthy on a regional level may qualify as being nationally important.
Executive and Legislative Branches
Checking websites like whitehouse.gov or congress.gov can be helpful resources for establishing national importance. For example, the White House website has links to presidential proclamations and executive orders.
The Congress website shows bills that are currently being discussed on the House and Senate floors. There are also items from past congressional records, as well.
Letters of Recommendation
Although they may be considered less objective, since most EB-2 NIW applicants ask for the letters, a recommender might include examples of the national importance of an I-140 beneficiary’s work. These might be used to supplement other evidence.
Be sure to have letters of recommendation printed on letterhead. It is also preferable they include the date of signature.
Check with an Immigration Attorney Near You
Although you can self-petition for an EB-2 NIW, it is no easy task. Consulting with someone who drafts this type of petition letter on a regular basis can be extremely helpful.
At Gallagher Domanski Professional Law Corporation, we focus solely on EB-2 national interest waiver and EB-1A extraordinary ability green cards. We also file E-2 treaty investor nonimmigrant visa applications. Contact us.
Imagine your excitement when you finally receive mail from the United States Citizenship and Naturalization Service (USCIS). Then think of how crestfallen you might feel when you find a Request for Evidence (RFE) letter inside the envelope.
Receiving an RFE letter can be extra frustrating if you have already been waiting months for some sort of response from USCIS on your case. Nevertheless, responding to an RFE can be an opportunity to make sure that your petition is approvable by a USCIS officer.
What’s an RFE?
Foreign nationals who have never heard of an RFE should consider themselves lucky. If you “Ask Emma” about them on the USCIS website, here is what she will say:
"A request for evidence (RFE) is made when an application or petition is lacking required documentation (initial evidence), or the officer needs more documentation (additional evidence) to determine an applicant's eligibility for the benefit sought. We may send you a request for evidence at any stage of our review. The request will indicate what evidence or information is needed for us to fully evaluate your application or petition. The notice will explain where to send the evidence and will give the deadline for your response. Your application or petition will be held in suspense during that time. If you receive a request for evidence and have questions about what you need to submit, you may call our USCIS Contact Center at 1-800-375-5283."
So, basically, an RFE is the Department of Homeland Security’s way of making sure that they have everything they need to approve a case. However, sometimes, an RFE can be a stall tactic on the part of USCIS.
REQUEST FOR EVIDENCE DURING PREMIUM PROCESSING
Certain immigration petitions and applications, such as for the EB-1A extraordinary ability green card and the E-2 treaty investor nonimmigrant visa allow applicants to submit Form I-907 to request premium processing. Paying an additional $2,500 for premium processing means that a USCIS officer must “act” on the case within 15 calendar days. However, frequently this speedy processing means the issuance of an RFE, or worse, a Notice of Intent to Deny (NOID).
The bright side is that beneficiaries of more complex cases, such as the EB-1A or the E-2, can treat the initial application sort of like a practice exam. They can use the RFE letter as a form of cheat sheet to see exactly what they must do to “pass” the test by getting an approval.
GETTING AN RFE AFTER YOU FILED THE CASE YOURSELF
Some noncitizens prefer to petition for an EB-1A, an EB-2 NIW, or an E-2 themselves in order to save money. But, as a colleague once quipped, “Just because I can put a new transmission in my car myself doesn’t mean that I will feel safe driving it afterwards.” There is a reason that people get surgery from people who went to medical school and highlights from licensed beauty professionals. To do otherwise can mean disaster.
If you tried to file your immigration case yourself and received a NOID or RFE from USCIS, you can still save your case. Many immigration law firms near you are willing to take you on as a client and respond to your RFE.
Bona Fide Enterprise for E-2 Visa Purposes
Even if you come from a qualifying treaty country and have substantial, investable capital, your USCIS E-2 visa application could be denied if it fails to establish that the proposed or existing business is a bona fide enterprise. As such, an E-2 visa applicant should submit supplemental evidence that the enterprise meets E-2 visa criteria.
The USCIS E-2 visa standards require that the enterprise is a real, active, and operating commercial or entrepreneurial venture that produces goods or services for profit. To demonstrate that the investor has the requisite commitment to the enterprise, the E-2 visa applicant might provide USCIS with a detailed description of the activities of the business, as well as financial statements and business reports.
Other examples of evidence that may prove to USCIS that the proposed or existing enterprise qualifies as a bona fide venture include the following:
The USCIS requires that an E-2 visa applications be for a bona fide venture in the USA, and not a marginal enterprise. As such, it can be important for you provide them with sufficient documentation to demonstrate that the enterprise is bona fide.
A marginal enterprise, as defined by the USCIS, is one that does not have the current or potential capacity to generate more than enough income for the treaty investor and their E-2 visa dependents. A persuasive E-2 visa application should demonstrate that the treaty investor’s income will be more than sufficient for at least five years from the date of the E-2 visa classification.
The USCIS could deny an E-2 visa application if it determines that the proposed or existing enterprise is derived from relatively small capital and is intended only to provide a living for the investor and their E-2 dependents. One method of fortifying an E-2 application is by submitting a detailed business plan or executive summary.
Additional documentation that may convince the USCIS that a treaty investor business is bona fide, rather than marginal, includes following: