The Benefits of Petitioning Under the EB-2 National Interest Waiver (NIW) Standard

China

People Born in China- Benefit of Having an National Interest Waiver (NIW) Approval

EB-2 visas are not currently available for individuals born in China, so even with an approved I-140 they must wait for permanent residence. Filing an NIW petition can still benefit clients who have a valid underlying non-immigrant visa status but may not have a strong EB-1A case.

Benefit of Having an National Interest Waiver (NIW) Approval for H1B Holders Born in China

Working on an H-1B visa is one of the most common ways our clients from China continue to work and live lawfully in the US while waiting for an EB-2 visa to become available. Because this non-immigrant status provides substantial time on its own, a NIW filing lets a client petition, obtain approval, and wait for an immigrant visa before their H-1B expires. H-1B allows immigrant intent, so H-1B holders may travel internationally and extend their H-1B visa even after filing a NIW. An approved I-140 also lets these individuals extend their H-1Bs in 3-year increments beyond the usual 6-year limit for H-1B until an immigrant visa becomes available. For an H-1B holder, an approved I-140 can additionally allow H-4 dependents to receive an Employment Authorization Document (EAD) that would otherwise be unavailable to them while they wait for an immigrant visa. In short, an approved NIW delivers substantial benefits for individuals in H-1B non-immigrant status, both in their ability to remain lawfully present in the U.S. and in employment benefits for their dependents.

Benefit of Having an National Interest Waiver (NIW) Approval for F-1 (OPT/STEM) Holders Born in China

An approved NIW can also help clients pursuing a degree on F-1 status or working under the F-1 OPT/STEM non-immigrant visa program. Retrogression for people born in China under EB-2 is usually not significant (3-5 years), and this non-immigrant category can keep a beneficiary in the US for several years on F-1 status plus up to 3 years after completing the underlying education program. With an approved NIW, such individuals can remain lawfully present while waiting for an immigrant visa by relying on the time allowed under the F-1 and OPT/STEM program. With sound filing strategy and careful calculation of petition timing, people born in China who hold F-1/OPT/STEM status can therefore benefit from NIW approval. Note, however, that this non-immigrant visa category is not dual-intent; anyone considering this route should consult an attorney first, because petitioning for the I-140 may demonstrate immigrant intent and can complicate international travel and obtaining OPT/STEM.

In short, an individual born in China has many ways to benefit from an NIW even though permanent residency cannot be applied for immediately.

India

People Born in India- Benefit of Having an National Interest Waiver (NIW) Approval

As with clients born in China, immigrant visas are not currently available for individuals born in India who petition for an NIW, and the current backlogs for Indian-born individuals are in fact longer than for people born in China. Those individuals must therefore wait for permanent residence even with an approved I-140. For many clients, however, filing an NIW petition can still be beneficial if they lack a strong EB-1A case but hold a valid underlying non-immigrant visa status. Working on an H-1B visa is one of the most common ways our clients from India continue to work and live lawfully in the US while waiting for an EB-2 visa to become available. Because this non-immigrant status provides substantial time on its own, a NIW filing lets a client petition, obtain approval, and wait for an immigrant visa before their H-1B expires. An approved I-140 also lets these individuals extend their H-1Bs in 3-year increments beyond the usual 6-year limit for H-1B until an immigrant visa becomes available. For an H-1B holder, an approved I-140 can additionally allow H-4 dependents to receive an Employment Authorization Document (EAD) that would otherwise be unavailable while they wait for an immigrant visa. In short, an approved NIW delivers substantial benefits for individuals in H-1B non-immigrant status, both in their ability to remain lawfully present in the U.S. and in employment benefits for their dependents.

In short, an individual born in India has many ways to benefit from an NIW even though permanent residency cannot be applied for immediately.

People Born in Iran- Benefit of Having an National Interest Waiver (NIW) Approval

Most of our clients who petition for an NIW were born in Iran, and their cases, like most of our NIW cases, have a very high approval rate. Many of our clients from Iran also studied in STEM fields, which makes them strong NIW candidates.

Petitioning for an NIW offers several potential benefits for individuals born in Iran. One of the most valuable is that EB-2 immigrant visas are currently available for people born in Iran, so unlike those born in China and India, Iranians with NIW approval can receive green cards without waiting (after adjustment of status approval or immigrant visa processing). Because this category may also present a lower threshold for individuals with fewer research credentials, it is a fruitful area to consider, assuming the individual otherwise meets the category requirements. Petitioning under the 2nd preference NIW category lets individuals born in Iran potentially meet what we generally consider a lower evidentiary threshold while also avoiding a wait for an immigrant visa.

Because of these benefits, many clients from Iran chose our firm to petition for an NIW early in their careers while holding F-1/OPT/STEM status, and our deep experience in the NIW category makes approval far easier for them.

We have also recently helped many Iranian clients obtain NIW approval while they were outside the U.S.: some resided in Canada or other European countries, while others were still in Iran. Their achievements in their fields and their active research and publication records allow us to argue strong NIW cases.

Taiwan, Vietnam, South Korea, Nepal, and Pakistan etc.

Like individuals of Iranian nationality, people from many other countries, Taiwan, South Korea, Nepal, and Pakistan among them, can petition under this category and gain substantial benefit, since immigrant visas are currently available for most countries (essentially all but India and China). Because this category may also present a lower threshold for individuals with fewer work credentials, it is a fruitful area to consider, assuming the individual otherwise meets the category requirements. Petitioning under the 2nd preference NIW category lets individuals born in many countries potentially meet what we generally consider a lower evidentiary threshold while also avoiding a wait for an immigrant visa.

People Born in Taiwan- Benefit of Having an National Interest Waiver (NIW) Approval

EB-2 visas are available for people born in Taiwan, so with NIW approval, individuals born in Taiwan can receive a green card without waiting. Many of our NIW clients are from Taiwan and, like our Iranian clients, many were studying in STEM programs. Their outstanding achievements made them strong NIW candidates, and the majority of the cases we filed for clients from Taiwan were approved.

Most of our clients from Taiwan file the NIW on F-1/OPT/STEM status, though some wait until H-1B status. We have found that visa status does not affect the chance of approval, as long as the applicant has credentials sufficient to meet the legal requirements.

People Born in Vietnam - Benefit of Having an National Interest Waiver (NIW) Approval

Each year we help many clients from Vietnam obtain NIW approval, and we have found that many clients from Vietnam possess strong credentials for it.

One challenge is that many of these Vietnamese clients were here on J-1 status subject to the Immigration and Nationality Act, Section 212(e), two-year home-country physical presence requirement. That requirement is usually very difficult to waive, so they must return home after finishing the J-1 program. It does not, however, affect their NIW petition. With sound strategy and careful calculation of petition timing, many of our clients from Vietnam eventually received green cards through NIW approval.

People Born in South Korea - Benefit of Having an National Interest Waiver (NIW) Approval

A good number of our NIW approvals involve clients from South Korea, and the petitions we filed for them, like most of our NIW cases, enjoy a very high approval rate. In recent years, more and more clients have wanted to file an NIW while still in South Korea. Many worked for internationally acclaimed companies such as Samsung. Given their achievements and the nature of their positions, we were able to argue their NIW cases successfully even without a U.S. job or a solid U.S. job offer.