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 processing time 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.
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.
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 at least a bachelor’s 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.