Top 5 Mistakes and Common Misconceptions Made By EB-2 National Interest Waiver Applicants

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick walks you through the top 5 most common mistakes and misconceptions made by EB-2 National Interest Waiver applicants and how you can avoid them.

Want to know more? Just keep on watching.

Overview

First, let’s discuss, what exactly is the National Interest Waiver?

The National Interest Waiver is part of the employment-based, second preference visa category for individuals who can demonstrate that they hold either an advanced degree or have exceptional ability in their proposed field or endeavor. Essentially, a National Interest Waiver allows an applicant to seek an exemption from the labor certification process, and bypass the job offer requirement typically required for individuals seeking an employment-based green card.  National Interest Waivers are granted to those who can demonstrate that their employment in the United States would greatly benefit the nation. The main advantage of the National Interest Waiver is that applicants can self-petition and do not need an employer to sponsor them. This is enormously beneficial when considering that the labor certification and recruitment process on its own can take a considerable amount of time to complete.

Furthermore, the 2016 ruling in Matter of Dhanasar introduced a brand-new framework for adjudicating National Interest Waiver petitions which broadened the pool of eligible applicants who could receive a National Interest Waiver.  Under the new standard, an NIW may be approved if it can be proved that (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 United States to waive the requirements of a job offer and thus of a labor certification. The Dhanasar court clarified that to meet the third prong, the applicant must show that in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification.

What are the top 5 mistakes and misconceptions applicants make when applying for the NIW?

The most common mistakes and misconceptions of the NIW

#1: If I don’t have an advanced degree, I don’t qualify for a National Interest Waiver.

This is a very common misconception that is completely false. Applicants can still qualify for the National Interest Waiver by showing that they have at least a baccalaureate or foreign equivalent degree plus 5 years of post-baccalaureate, progressive work experience in the field.

But there is even better news. Applicants who do not have a baccalaureate degree or the foreign equivalent can still qualify for the National Interest Waiver, if they can show that they have exceptional ability in the sciences, arts, or business. Exceptional ability is defined as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

#2: The burden of proving that I meet the criteria of the EB-2 National Interest Waiver to waive the labor certification requirement is all on me

Every case filed with USCIS will be adjudicated according to the merits of the application. Applicants can help shift or minimize the burden of proof by providing strong evidence that they meet more than enough of the required criteria. For instance, the more criteria that can be demonstrated, the less likely the applicant is to be questioned regarding the three prongs of the Dhanasar criteria to waive the labor certification requirement. Applicants should be careful not to compare their case to those of others because there are numerous factors that can impact a decision made by USCIS. Thorough and carefully presented documentation that is well put together can make all the difference in proving an applicant’s case. Do not fall into the trap of believing that just because someone with a similar background as you failed to meet the burden of proof, that you will as well. Discussing your case with an experienced immigration attorney will help you navigate the process to identify the weak areas of your case and make them stronger.

#3: If I don’t have any publications or citations my case will fail

This is yet another common misconception. After the Dhanasar ruling, publications and citations have become just one of many ways to demonstrate that an applicant meets the three prongs of the Dhanasar criteria. Not having published materials or scholarly articles published in major media such as well-known journals is no longer an impediment to the National Interest Waiver process. Of course, having such evidence is beneficial to proving an applicant’s case, however it is by no means necessary. In such a situation where an individual does not have publications and/or scholarly articles, it is very important for the applicant to work closely with their immigration attorney to discuss his or her professional background and what other evidence might be useful in helping prove the NIW criteria, such as evidence of high achievements, high salary, evidence of memberships in distinguished associations, or the possibility of including a well-constructed business plan describing the proposed endeavor of national importance. Such factors can make all the difference in building a successful NIW application.

#4: I am too young to qualify for the NIW

This is a big misconception to have. Although some NIW requirements suggest that an applicant should have at least 10 years of full-time experience in his or her occupation, this factor is not in and of itself a barrier to qualifying for the NIW. Applicants who can demonstrate exceptional ability in their field despite their young age can still qualify for the NIW, for example by showing evidence of patented cutting-edge technologies, copyrights, the creation of an innovative new business, etc. Such evidence can certainly overcome the criteria of at least 10 years of full-time experience, where the evidence provided is well thought out and well put together to demonstrate the applicant’s high achievements and significant contributions to his or her field that are above that ordinarily encountered in the profession. Do not be discouraged if you are a young applicant. It is very important to consult with an experienced attorney who can make recommendations based on your unique background and identify the areas that will be important for your case based on your contributions to your field.

#5: I received bad/discouraging advice from another attorney. I do not think I am eligible for the NIW.

While we cannot guarantee any particular outcome for an applicant, we can tell you that we have had many consultations with clients who have come to us for a second opinion after being told that they do not qualify for the National Interest Waiver by another law firm. Our office has had successful approvals in many of these cases that at first glance seemed inadequate. Our attorneys have carefully worked with applicants to gather the necessary documentation, focusing on other criteria that they can easily meet and overcome any perceived weaknesses. Ultimately, the determination of whether a case will be approved rests in the hands of the immigration officer reviewing the application. Officers exercise a high degree of discretion in NIW cases and can decide that while some factors have not been met, the Dhanasar criteria have been proven and it is in the national interest to waive the labor certification requirement. Applicants should seek the advice of an experienced immigration attorney that specializes in National Interest Waiver applications and weigh their options according to that advice. Remember, not all attorneys have experience with these types of applications and you may need to speak to more than one attorney to decide who is right for your case.

Conclusion

We urge applicants not to be discouraged. The National Interest Waiver application can seem daunting, but with the right immigration help and guidance you can make an informed decision regarding your next steps in the process. To learn more about the National Interest Waiver or other visa options that may be right for you we invite you to visit our website.

Want to know more about the NIW? If you are interested in applying for the National Interest Waiver and you have any further questions about the process please contact us to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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