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ANSWERS TO QUESTIONS ABOUT NATIONAL INTEREST WAIVER (NIW)

Sharlene Sharmila Richards

Sharlene Sharmila Richards

YOUR IMMIGRATION LAWYER

Answers to your Immigration Questions
by Sharlene Sharmila Richards, Immigration Lawyer:email at srichardslaw@aol.com

Q: I am an H-1B visa holder working as a Senior Researcher. My employer has indicated that it does not wish to sponsor me for permanent residence. Is there any other way I can obtain permanent residence myself?
A: Apart from the possibility of changing your H-1B employer to one which will sponsor you for permanent residence, your other options are to consider a self-petition under the EB2 National Interest Waiver or the EB1 Extraordinary Ability for aliens with extraordinary ability in business, science, art, education or athletics or under both categories, depending on which requirements can be met. The EB1 Extraordinary Ability category is for aliens recognized as being at the top of their particular field and who intend to continue to work in that field. The EB2 National Interest Waiver on the other hand is for aliens with either an advanced degrees or exceptional ability in the sciences, arts or business and can show that he or she is able to contribute to the US national interest to a greater degree than other similarly qualified individuals in that field thus waiving the need for PERM labor certification.
Q: Can you explain the requirements for the National Interest Waiver (NIW)?
A: There are several requirements to be met in order to have a successful National Interest Waiver petition. To qualify, the alien must hold an advanced degree or have ‘exceptional ability’ in the sciences, arts or business. Advanced degree means either a Master’s Degree, Ph.D and can also include those who hold a Bachelor’s Degree with five years of progressive experience in the job. Both US degrees and foreign equivalents are accepted. ‘Exceptional Ability’ in the sciences, arts or business means demonstrating at least three of the following requirements : academic record from institution of higher learning related to an area of exceptional ability; license to practice the profession; membership in a professional association; proof of recognition for achievement and significant contributions in the field or industry by peers, government entities or professional / business organizations; evidence of the command of a salary or other remuneration for the work involving that exceptional ability; demonstrate through letters of experience that he or she has at least ten years of full time experience in the occupation related to the field of exceptional ability. The alien must also be able to demonstrate a further three things: First, that he or she seeks employment in an area of substantial intrinsic merit to the United States. This means work that is valuable to the national interest. Second, the work must have a benefit that is national in scope. This means that the alien’s work cannot merely have regional or particular area impact but rather national impact. Third, requiring a Labor Certification for the alien will adversely affect the national interest. This means that the alien’s work in the field is so great that it would outweigh the nation’s interest in protecting US workers by requiring this alien to undergo the Labor Certification process (PERM).
Q: I currently hold J-1 status and I am subject to the two year foreign residency requirement. Can I still apply for the National Interest Waiver?
A: Yes, you may. But because of the two year foreign residence requirement, you will need to either satisfy the two year home rule requirement or obtain a waiver of the J-1 home rule requirement before you can adjust your status to a permanent resident or be granted the Immigrant Visa.
Q: I am thinking of filing for the National Interest Waiver and also for my Permanent Residence concurrently. Can I do this?
A: It depends on whether an immigrant visa is available for that EB2 preference category for your country of chargeability. See the current Visa Bulletin for this information.
Q: If my National Interest Waiver (NIW) is approved, do I have to continue to work in the same field before my permanent residence has been granted?
A: For National Interest Waiver, you should continue to work in the same field as your National Interest Waiver petition. Your adjustment of status to permanent residence may be denied if you choose to work in another field.
Q: I want to file both EB2 National Interest Waiver and EB1 Extraordinary Ability petitions at the same time. If one of my I-140 Petitions is approved, what happens to the other I-140 petition?
A: If one I-140 Petition is approved, and you are eligible to file for your adjustment of status at the time, then go ahead and do that. There is no need to withdraw the other I-140 Petition. It is best to keep other petition as a fall back, if necessary.
Q: What happens if my I-140 Petition for National Interest Waiver has been denied? Can I appeal the denial?
A: If such a petition is denied, you have several option: Appeal the denial to the AAO (Administrative Appeals Office) if you think that the decision to deny you NIW petition was erroneous, file a motion to reopen if you did not provide certain evidence at the time of the filing of the petition or file a motion to reconsider for the petition to be reviewed by USCIS again.

Disclaimer: Any advice provided in this article is general in nature and not intended to constitute legal advice for any specific case. Please consult with an immigration lawyer about the specific circumstances of your case.

Bio:
Sharlene Sharmila Richards is a licensed Immigration Lawyer practicing in Houston, Texas. She is a member of the American Immigration Lawyers Association. She was admitted to the New York State Bar in 2000 and is a member of the 5th Circuit Court of Appeals and a member of the US Supreme Court. If you require immigration advice or assistance, you may contact her at telephone number 713-623-8088 or by email at srichardslaw@aol.com to schedule a free consultation to discuss your case.

 


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