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The EB-2 National Interest Waiver (NIW) is an incredibly attractive option for many professionals and others who are considering immigrating to the United States.  This type of visa allows you to self-petition, which means that you do not need a job or job offer in order to apply.  Additionally, because the EB-2 NIW visa does not require an employer to sponsor the visa, you do not have to undergo the labor certification process in order to qualify.

The EB-2 NIW visa has increased in popularity, as it is a direct path to permanent legal resident status (green card).  In 2020, there are several trends that we may see with this type of visa.  From increased processing time to the possibility of applying now to maintain your status, we outline the top trends for the coming year.

At Colombo & Hurd, we work with individuals, businesses and families as they navigate the often-complex world of immigration law.  As many members of our team are immigrants themselves, we bring a unique perspective to the process.  Not only do we have substantial knowledge of the law, we have personal experience with immigration.  This combination makes us an ideal choice if you are seeking an EB-2 NIW visa attorney.

Longer Processing Times

The United States Citizenship and Immigration Services (USCIS) provides an estimate of current processing times via its website.  Two USCIS processing locations — the Texas Service Center and the Nebraska Service Center — handle EB-2 NIW visa applications.

The Texas Service Center currently has a longer processing time than usual for EB-2 NIW visas, at 9 to 12 months.  In our experience, the Texas Service Center is taking more time than estimated to process these types of visas.

As a result, if you file a petition for an EB-2 NIW visa, you should expect that it will take a year or greater for your petition to be processed.  While a lawyer can’t make USCIS work faster, having a petition that is properly completed and supported by necessary documentation can limit avoidable delays from nasty Requests for Evidence (RFE) or Notices of Intent to Deny (NOID).

It’s important to note here that this is specific to the Form I-140 only, the first step toward a green card. If you were able to file the I-485 Application for Adjustment of Status at the same time, that case will continue after the I-140 is approved. If you were unable to file the I-485 because a visa number was not available at the time of filing, we will review the current Visa Bulletin from the U.S. Department of State to determine when an immigrant visa may be available.

A common misconception is that the EB-2 NIW is actually “faster” than other processes because, as immigrant visas have been current for most, you can also file for the green card and temporary work permit. While that is true and allows you to remain in the U.S. after filing and even begin working with the EAD in three to five months, that does not mean your underlying EB-2 NIW case is more or less approvable. The merits of the case will still be determined in about a year, and the green card application can be denied if the EB-2 NIW portion is denied. Proper care and planning with your EB-2 NIW attorney are essential.

Can Anyone Who Meets EB-2 Requirements Qualify for a Visa?

There is a misconception that the EB-2 NIW visa is limited to certain categories of professionals.  Typically, prospective immigrants assume that this type of visa is only available to scientists and professionals.  While this is technically untrue  — and in 2020, the trend will be for a wider range of professionals to apply for an EB-2 NIW visa – there are important considerations on the ultimate approvability of your case

There are two categories of people who may qualify for this type of visa: (1) members of the professions who hold an advanced degree (or the equivalent), meaning a master’s degree or a bachelor’s degree and five years of post-baccalaureate experience; and (2) individuals who can prove that that they exceptional ability in the sciences, arts, medicine, business or athletics.  Notably, this standard does not limit the visa to only researchers and scientists.  Anyone who can meet the criteria may meet the most basic of qualifications for an EB-2 NIW visa.

That said, in late 2016, USCIS updated the standards for who may qualify for a NIW after a decision from the Administrative Appeals Office in Matter of Dhanasar.  Under Dhanasar, an applicant must demonstrate, in addition to the degree/exceptional ability requirement, the following to be eligible:

  1. The foreign national’s proposed endeavor has both substantial merit and national importance;
  2. The foreign national is well-positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements of the EB-2 category.

While this test may appear to be a flexible standard than the one previously used by USCIS, it is important to work with your EB-2 NIW attorney to navigate the various sub-parts and considerations for the NIW. For example, as shown below, being “well positioned” means not just your credentials, but also making progress toward benefitting the U.S. Having both “substantial merit” and “national importance” are really two separate considerations, one of which has little to do with how “important” your project or endeavor may seem to the average person!

As a result, while it seems that a broad range of petitioners may “qualify” for an EB-2 NIW Visa, only through working with an experienced EB-2 NIW attorney can you determine if the EB-2 NIW is right for you, or one of the many other options available.

Filing Dual Visa Petitions

One of the main advantages of the EB-2 NIW is that an individual can self-petition for this type of visa.  This allows applicants to obtain a green card without a job offer or a job — and to avoid the lengthy labor certification process that would normally be required before applying for a green card.  In 2020, we may see more individuals self-petitioning for an EB-2 NIW…at the same time that their employers petition for an EB-2 visa on their behalf.

Because I-140 petitions are adjudicated individually, it is possible to file a self-petition EB-2 NIW visa application while your employer petitions for an EB-2 visa for you.  This means that if you currently have a job or job offer, you can ask your employer to seek a visa for you — and apply for your own at the same time.

The main advantage of undertaking this process is that it gives you more choices over time.  With an EB-2 visa, an employer must go through an extensive process (which involves proving that there are no American workers available to fill the position based on recruiting efforts).  If you apply for an EB-2 visa and decide to change employment, then the petition will have to be transferred to your new employer (as the employer is the petitioner and you are the beneficiary of the application).  If you concurrently file for an EB-2 NIW visa and are approved, then you won’t have to worry about transferring the petition.  This gives you greater opportunities to switch employment.

In addition, having a U.S. job offer may benefit the NIW process, particularly in the “well positioned” prong of the NIW test. In that portion, not only is your educational and professional background considered, but also any progress you have made toward your proposed endeavor. Having U.S. employer interest may help show that progress has been made.

The Visa Bulletin Remains Current (for some…for now…)

Each month, the Department of State releases a visa bulletin.  Because the number of green cards available to foreign nationals is limited, this visa bulletin is a helpful way to determine eligibility for final action (obtaining a green card) and for filing a petition.  In February 2019, the Department of State released its March 2020 visa bulletin.

Significantly, this bulletin provided that for foreign nationals of all countries other than China and India, there is no backlog.  In other words, the visa bulletin is current as of March 2020.  This is important, as it means that there is not a cut-off date for filing this type of petition as of right now.  However, this may change within the next 1 to 3 months.  For this reason, if you are considering filing for an EB-2 NIW visa, you should do so as soon as possible.  This is particularly true for anyone who in lawfully present inside the United States and may want to file an I-485 and I-765 form.  Filing the I-140 for the NIW and the I-485 for adjustment of status will allow you to remain in the United States while the cases are pending, and obtain work authorization in three to five months.

Work with an Experienced EB-2 NIW Visa Attorney

If you are considering an EB-2 NIW visa, you may be daunted by the prospect of applying.  A skilled EB-2 NIW visa attorney can work with you to ensure that your petition is complete and well-supported.  In addition, a seasoned lawyer can advise you of your immigration options, and counsel you on the best time to file a petition.

At Colombo & Hurd, we represent individuals across the world who seek to immigrate to the United States.  We have significant experience in EB-2 NIW visas and utilize our knowledge to help you file an approvable case.  To learn more or to schedule a consultation with a member of our team, contact us online or call us at (407) 478-1111 (Orlando), (813) 444-1114 (Tampa) or (305) 455-0590 (Miami).

Salvatore Picataggio

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