By Yangkyoung Lee, Esq. of Lee Justice Center
NOT ALL EMPLOYMENT-BASED GREEN CARD REQUIRE LABOR CERTIFICATION OR JOB OFFER
In EB-2 cases, the employer offering the worker employment must file the preference petition on Form I-140, except when the worker is seeking an exemption from the job offer requirement, in which case the worker or any person on his or her behalf may file the petition. To be exempt from the job offer requirement, USCIS must determine that an exemption would be in the national interest. A labor certification is not required if the job offer requirement is waived.
STRICT NYDOT REQUIREMENTS VS. POST 2016 DHANASAR NEW STANDARD
Matter of New York Department of Transportation (NYDOT) established stricter standards for obtaining national interest waivers than those applicable in the past. 22 I. & N. Dec. 215, 1998 WL 483980 (B.I.A. 1998). For years, the government had declined to issue a comprehensive and controlling definition of national interest and instead had advised the Service Centers to treat petitions involving national interest waiver requests on a case-by-case basis.
Post-NYDOT AAO decisions confirmed that such waivers were difficult to obtain. Under the rigid standards, national interest waivers were rarely granted except in a narrow class of cases typically involving foreign nationals working in STEM fields.
The new AAO decision, Matter of Dhanasar, 26 I. & N. Dec. 884, 2016 WL 8445731 (USCIS AAO 2016), vacates the NYSDOT test and replaces it with a more flexible standard.
To be eligible for a national interest waiver under the new test, an EB-2 petitioner—either the foreign national or an employer—must meet all of the following criteria by a preponderance of the evidence:
CAN YOU FILE PREMIUM PROCESSING FOR NIW CASE?
The short answer is no. Premium processing allows certain petitions to be processed within 15 days for extra fees. Unfortunately, the NIW cases are excluded in premium processing eligible EB2. Thus the USCIS does not expedite the NIW cases.
WHY NIW? WHAT'S GOOD?
If you are eligible, obviously the best advantage of NIW is that you don't need a job offer. Consequentially, this means there will be no PERM to go through and added potential aspect of being audited, which could take at least one year or two years or even more if audited. But as mentioned, NIW petition is certainly not an easy petition to prepare for and not an easy case to win. But with the right combination of qualifications, experience, and good lawyering skills of presenting the evidence, it is certainly doable.
WHO CAN FILE NIW?
There is no official limitation of professional field or criteria. But many successful candidates have either very prominent academic or professional achievements, which include prominent awards and titles. However, there have been some cases where those who exhibit the right combination of experience academically and good recommendation letters have won their cases.
NIW cases are very tricky and require certain lawyering skills to prepare a compelling case. Thus if you are interested in NIW, please consult with experienced immigration attorney.
If you are interested in NIW or any other immigration cases, please contact our office by calling us at 619-920-3071 or emailing us at [email protected].
In EB-2 cases, the employer offering the worker employment must file the preference petition on Form I-140, except when the worker is seeking an exemption from the job offer requirement, in which case the worker or any person on his or her behalf may file the petition. To be exempt from the job offer requirement, USCIS must determine that an exemption would be in the national interest. A labor certification is not required if the job offer requirement is waived.
STRICT NYDOT REQUIREMENTS VS. POST 2016 DHANASAR NEW STANDARD
Matter of New York Department of Transportation (NYDOT) established stricter standards for obtaining national interest waivers than those applicable in the past. 22 I. & N. Dec. 215, 1998 WL 483980 (B.I.A. 1998). For years, the government had declined to issue a comprehensive and controlling definition of national interest and instead had advised the Service Centers to treat petitions involving national interest waiver requests on a case-by-case basis.
Post-NYDOT AAO decisions confirmed that such waivers were difficult to obtain. Under the rigid standards, national interest waivers were rarely granted except in a narrow class of cases typically involving foreign nationals working in STEM fields.
The new AAO decision, Matter of Dhanasar, 26 I. & N. Dec. 884, 2016 WL 8445731 (USCIS AAO 2016), vacates the NYSDOT test and replaces it with a more flexible standard.
To be eligible for a national interest waiver under the new test, an EB-2 petitioner—either the foreign national or an employer—must meet all of the following criteria by a preponderance of the evidence:
- The foreign national's proposed endeavor has both substantial merit and national importance.
- The foreign national is well positioned to advance the proposed endeavor.
- On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements of the EB-2 category.
CAN YOU FILE PREMIUM PROCESSING FOR NIW CASE?
The short answer is no. Premium processing allows certain petitions to be processed within 15 days for extra fees. Unfortunately, the NIW cases are excluded in premium processing eligible EB2. Thus the USCIS does not expedite the NIW cases.
WHY NIW? WHAT'S GOOD?
If you are eligible, obviously the best advantage of NIW is that you don't need a job offer. Consequentially, this means there will be no PERM to go through and added potential aspect of being audited, which could take at least one year or two years or even more if audited. But as mentioned, NIW petition is certainly not an easy petition to prepare for and not an easy case to win. But with the right combination of qualifications, experience, and good lawyering skills of presenting the evidence, it is certainly doable.
WHO CAN FILE NIW?
There is no official limitation of professional field or criteria. But many successful candidates have either very prominent academic or professional achievements, which include prominent awards and titles. However, there have been some cases where those who exhibit the right combination of experience academically and good recommendation letters have won their cases.
NIW cases are very tricky and require certain lawyering skills to prepare a compelling case. Thus if you are interested in NIW, please consult with experienced immigration attorney.
If you are interested in NIW or any other immigration cases, please contact our office by calling us at 619-920-3071 or emailing us at [email protected].
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