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EB-1 & EB-2c NIW Evaluation


What Makes This Visa Category Special And Different From Other Employment-Based Immigrant Visas?

1) Applicants for the EB-2c (and Eb-1a) Immigrant Visas do not need to have a job offer or employment in the United States, or have an U.S. Employer Petition for them. "Self-Petitions" are allowed.
2) Because of the lack of the Job Requirement for this Immigrant Visa category, a "Labor Certification" by an employer is not required.
3) Physician's that agree to work for a period of time in a designated underserved area can use this category to obtain Lawful Permanent Residency. 

What Are The Requirements For The EB-2c National Interest Waiver Immigrant Visa?

There are two basic requirements to qualify:

1)Having an advanced degree professional OR being an Alien of exceptional ability. If you are not an advanced degree professional that holds an academic or professional US degree above the baccalaureate level or a foreign degree equivalent in your field (or potentially an baccalaureate degree with the necessary progressive work experience), you must meet at least three of the criteria below and demonstrate exceptional ability. This means a degree of expertise that is significantly higher that most individuals in the applicant’s field. Applicants have to demonstrate that they will substantially benefit the national economy, cultural, educational interests and/or the public welfare of the U.S because of their exceptional ability in the sciences, arts or business. Applicants have to provide at least three of the following documents:

Criteria For Establishing Exceptional Ability For Those Without a Professional Degree

(a) Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability;
(b) Letters documenting at least 10 years of full-time experience in your occupation;
(c) A license to practice your profession or certification for your profession or occupation;
(d) Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability;
(e) Membership in a professional association(s);
(f) Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations;
(g) Other comparable evidence of eligibility is also acceptable.

Notes on Publications, Citations, Articles and Patents




***Note: on December 27, 2016, the Administrative Appeals Office issued a new framework for adjudicating National Interest Waiver Petitions, removing the previous "NYSDOT" standard***


2) Having enough past and future success in your field that it would be justified in the National Interest for the Labor Certification Requirements be waivedThe NIW "National Interest Standard"

The Petitioner filing this Petition must establish to the satisfaction of the reviewing USCIS officer that waiver of the job offer requirement (and obtaining a "Labor Certification") is in the "National Interest." Unfortunately the term "National Interest" has not been defined in the statute or pertinent regulations. Congress has not provided a specific definition of "in the national interest" either.

The New Framework for Analyzing the EB-2c National Interest Waiver Immigrant (NIV) Visa Petition

The Administrative Appeals Office (AAO) released a post-Christmas present this year by revising and changing the Green Card Petition known as the EB-2c National Interest Waiver. This change based on the case of Matter of DHANASAR (26 I&M Dec. 884, 2016), vacated the previous guidance provided by the (in)famous decision of Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998) commonly referred to as “NYSDOT”.​

Background of the EB-2c National Interest Waiver Category

Under subparagraph (A) of INA Section 203(b)(2), immigrant visas are available to “qualified immigrants who are members of the professions holding advanced degrees or their equivalents or who because of their exceptional ability in the sciences, arts or business, will substantially benefit prospectively the national economy, cultural or educational interest or welfare of the United States.” Under this subcategory, the immigrant visas are available only to individuals who are petitioned for by an employer in the United States.

Normally this requires the employer to request permanent labor certification from the United States Department of Labor (“DOL”) under INA Section 212(a)(5)(A)(i), 8 U.S.C. Section 1182(a)(5)A)(i) (2012), 8 C.F.R. 204.5(k)(4)(i) (2016). This is to demonstrate that the DOL has determined that there are not sufficient workers who are able, willing, qualified and available at the place where the alien is to perform such skilled or unskilled labor, and the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

However, under subparagraph (B) of INA Section 203(b)(2), the Secretary of Homeland Security may waive the requirement of the “job offer” and the permanent labor certificate request. 8 C.F.R. Section 204.5(k)(4)(ii). This subparagraph states that the Secretary “may, when the [Secretary] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.” INA Section 203(b)(2)(i).

Thus a petitioner seeking a national interest waiver must first qualify under subparagraph (A) and then (B).  However, although the statutory scheme was relatively straightforward, the term “national interest” was left ambiguous, leading to various interpretations.

History of the Adjudicators Interpretation of the “National Interest”


In 1998, legacy Immigration and Naturalization Service issue a precedent decision establishing a framework for evaluating national interest waiver petitions in Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), referred to as NYSDOT.

In the NYSDOT framework, the Service (1) first looked to see if the petitioner had shown that the area of their employment is of “substantial intrinsic merit”. (2) a Petitioner had to establish that any proposed benefit from the individual’s endeavors would be “national in scope”. Finally, (3) the petitioner had to demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national.

AAO’s Problems with the former NYSDOT Framework

In its new decision, DHANASAR, the AAO believed there was a need to reassess the NYSDOT framework. With regards to the first two prongs, the terms “intrinsic merit” and “national in scope” lead to subjective interpretations that had caused problems in some cases.

In the NYSDOT case, a civil engineer’s employment was found to be national in scope even though it was limited to a particular region of the United States because it was related to New York bridges and roads that was geographically connected with the national transportation system. In DHANASAR, they said that certain locally or regionally focused endeavors may be of national importance despite being difficult to quantify with respect to geographic scope.

However, what create the most confusion for petitioners, adjudicators and immigration lawyers was the third prong of NYSDOT. This prong was explained in several different ways that left people with uncertainty as to what the ultimate inquiry was:

  1. The petitioner demonstrates that the national interest would be adversely affected if a labor certification was required
  2. The individual demonstrate and presents a national benefit so great as to outweigh the national interest inherent in the labor certification process
  3. That the individual will serving the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications
  4. Clearly establishing that the alien’s past record justifies projections of future benefit to the national interest (With a footnote to this statement clarifying that USCIS seeks “a past history of demonstrable achievement with some degree of influence on the field as whole.”)

The AAO also found a more fundamental problem in this interpretation in that the third prong could be misinterpreted to require the petitioner to submit, and the adjudicator to evaluate, evidence relevant to the very labor market test that the waiver is intended to forego. The AAO stated that these concepts proved to be difficult for many qualified individuals to establish or analyze in the abstract, especially for self-employed individuals, such as entrepreneurs. Further they said that the concept of harm-to-national-interest was not required by, and unnecessarily narrowed, the Secretary’s broad discretionary authority to grant a waiver when he/she “deemed it to be in the national interest.”

Moreover, they admitted that with the “influence” standard rested upon the notion that past success would predict future benefit, but experience showed that for some talented individuals past achievements were not necessarily the best or only predictor of future success.

The New DHANASAR National Interest Waiver Framework

The AAO acknowledged the short comings of the previous framework and has attempted to provide greater clarity and a more flexible standard to better advance the purpose of the broad discretionary waiver provision to benefit the United States. Under the progressive new standard, the petitioner must demonstrate by a preponderance of the evidence:

  1. That the foreign national’s proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. That, on balance, it would be beneficial to the United States to waiver the requirements of a job offer and thus a labor certification.

The first prong will focus on the specific endeavor that the foreign national proposes to undertake in the United States.

Merit can be demonstrated:

  • In a range of areas such as business, entrepreneurialism, science, technology, culture, health or education.
  • Evidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required. An endeavors merit may be established without immediate or quantifiable economic impact, such as those related to research, pure science, and the furtherance of human knowledge, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.

National Importance can be determined by:

  • Potential prospective impact.
  • Having national or global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances.
  • But not solely evaluated based on geographic terms.
  • Broader implications are looked at.
  • Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance.
  • Avoiding the NYSDOT overemphasis on the geographic breadth of the endeavor.
  • An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in economically depressed areas, for instance, may well be understood to have national importance.

The second prong shifts its focus to the proposed endeavor to the actual immigrant, to see if they are well positioned to advance the proposed endeavor, by considering factors including, but not limited to:

  • The individual’s education, skills, and knowledge,
  • Record of success in related or similar efforts,
  • A model or plan for future activities,
  • Any progress towards achieving the proposed endeavor, and
  • The interest of potential customers, users, investors, or other relevant entities or individuals.
  • They further recognized that forecasting the feasibility or future success is a challenge and that many endeavors may ultimately fail in whole or in part despite an intelligent plan and good execution.  Therefore, they do not require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed. But they must establish by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.

The third prong was simplified to require the petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification, by evaluating such factors as:

  • Whether, 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;
  • Whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; AND
  • Whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.

They emphasize that in each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the job offer and labor certification requirement.

Also, this prong, unlike the NYSDOT third prong, does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.

The Facts of the Matter of DHANASAR Case

The Petitioner in the case proposed to engage in research and development related to air and space propulsion systems and to teach aerospace engineering at the University level. The petitioner held two master’s degrees and Ph.D. in the subject, and was working as a postdoctoral research associate. He done much work in this field and had developed models and novel methods this area.

The petitioner had provided reliable evidence of credentials, copies of publications and other articles citing to his work, evidence of his membership in professional associations, and documentation regarding his research and teaching activities, along with several letters from individuals who established their own expertise in this field, describing the petitioner’s research in detail to attest to his expertise.
 
Based on the new three prong system:

Substantial merit and national importance of the proposed endeavor were shown. It was for military and civilian use, and for national security. Also, letters from senior academics and government and industry leaders described the importance of the work for U.S. strategic interests. Media articles were also providing showing the governments strong interest in advancing this field.

The petitioner was well-positioned to advance the proposed endeavor. In addition to multiple degrees, he had experience conducting research and development that support to the U.S. Department of Defense. Detailed letters explaining the national interest and investment of the U.S government were also provided, and the petitioners role in these projects (funding of projects by the government).

On balance, was beneficial to waive the job offer and labor certificate requirement. The petitioner held multiple graduate degrees in the fields tied to the proposed endeavor, with a record demonstrating the possession of considerable experience and expertise in a highly specialized field. The research had significant implication for U.S. national security and competitiveness. Moreover, the petitioner had received repeated funding by key organizations including NASA and the Department of Defense.

However, the AAO denied the portion of the petition related to teaching in this field saying that although science, technology, engineering and math (“STEM”) disciplines are important and have substantial merit in relation to U.S. educational interests, the record did not indicate by a preponderance of the evidence that the petitioner would be engage in activities that would impact the field of STEP education more broadly.


What Can A Petitioner/Applicant Use To Show Previous Important Work?

1) Previous Research, Writing and Grants: An applicants previous research, citations in established papers and journals, first authorship position can help establish their success in their field. An applicant's Google Scholar Citation Count can help show this process. But note that the importance of the specific work must be established as well.

2) Detailed Letters of Reference from established individuals in the petitioner’s field specifically describing the work done by the Applicant can be very important as well. It is best to provide at least 5 such letters from both experts that know the Petitioner personally and those that do not.

3) Supporting documents of accomplishments such membership in professional associations, awards, honors, conference invitations and presentations, and articles written about the Applicant, etc.

Green Cards Through A Physician National Interest Waiver

  • You have to agree to work full-time in a clinical practice. For most cases, the required period of service is 5 years.
  • The work must be in primary care (like a general practitioner, family practice petitioner, general internist, pediatrician, obstetrician/gynecologist, or psychiatrist) or be a specialty physician
  • You must serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA)
  • You must obtain a statement from a federal agency or a state department of health that has knowledge of your qualifications as a physician and that states your work is in the public interest (This statement is known as an attestation)

What Is Required In The Petition Package?

1) Form G-28 - Notice of Appearance of Attorney (if filing with an attorney);

2) Form I-140 - Immigrant Petition for Alien Worker. Visit https://www.uscis.gov/i-140 for the most recent Form I-140 and its instructions;

3) Form 750b - Foreign Labor Certification;

4) Cover Letter explaining the work of the Applicant and the Contents of the EB-2c NIW Package;

5) Supporting documents (Evidence of Past and Prospective Accomplishments):

a) Detailed and Specific Letters of Recommendation from reputable individuals in the Applicant's field;

b) Documentation of Grants or Investments in the Applicant's work;

c) Awards and Honors;

d) Membership in professional associations with stringent membership requirements;

e) Publications and citation count. Note that the level of standing in the community if analyzed as well; and/or articles written about the Applicant;

f) Evidence of Conference invitations and presentations, and/or;

g) Other evidence of success in the Applicant's area of expertise and work.

6) Proof of Advance Degree or Exceptional Ability;

7) Curriculum Vitae (C.V.) or detailed resume;

8) Filing Fee for Form I-140 in the amount of $700.00. (Increased on Dec. 23, 2016)

* Potential Form I-485, Application for Adjustment of Status, Package concurrently with the EB-2c Package, or subsequently upon approval.

Where Do You File The Petition Package?

For the most recent filing addresses, visit: https://www.uscis.gov/i-140-addresses#Alone. The current mailing address (Jan. 2016) is:

For Filing the Form I-140 by itself:

  • Mailing with USPS: USCIS, Attn: I-140, P.O. Box 660128 Dallas, TX 75266
  • Mailing USPS Express Mail or Courier Service: USCIS Attn: I-140 2501 S. State Highway 121 Business Suite 400, Lewisville, TX 75067

If also Filing Form I-140 with Form I-485:

  • Mailing with USPS: USCIS P.O. Box 660867 Dallas, TX 75266
  • Mailing USPS Express Mail or Courier Service: USCIS Attn: AOS 2501 S. Highway 121 Business Suite 400, Lewisville, TX 75067

What Happens After Filing?

After Filing, several things may occur:

  • Approval: the Petition can be approved. If the Form I-485 was submitted, you may be able to obtain a Green Card. If Form I-485 had not been submitted, you can submit it now. Or if the Beneficiary/Applicant is living abroad, they can go through Consular Processing.
  • Request For Evidence (RFE): USCIS will specify additional documents that are necessary for it to make a decision. The Petitioner will have 84 days to respond in most cases.
  • Notice Of Intent To Deny (NOID): Usually an RFE is given, but a NOID can be provided as well that will list the reasons USCIS believes the Petition should be denied.
  • Denial: Usually after failure to provide an adequate RFE response, but rarely a denial may occur after submission without providing an RFE or NOID first.

Are Appeals Possible?

If the Petition is denied, an Appeal to the AAO, or Motions to Reopen or Reconsider are possible. However, these must be submitted within 33 days of the date of the denial letter.

What Are The Processing Times

Unfortunately Premium Processing is not available for EB-2c NIW Petitions. Processing of an I-140 Package (without the I-485 or Consular Processing) can take 3-9 months.

What Are The Fees?

For a Quote of the Legal/Attorney Fees, a consultation is required with an attorney to review the case. A review of the Applicant is required to estimate the legal hours required for the case. A flat fee will be provided. Please contact JQK Law by Phone (310) 582-5904 or email your C.V./Resume to info@jqklaw.com to get an initial review.

The Government Filing Fee for Form I-140 Immigrant Petition for Alien Worker is $700.00.* Premium Processing is not available. The Adjustment of Status Fees ($1,225.00 per adult applicant)* or Consular Processing Fees ($345.00 per applicant)* are separate submitted.

What Is The Role Of The Attorney In This Process?

Our role as the Attorney of Record is to assess strength of an EB-2c NIW case based on documents and information provided by the Applicant. Upon reviewing the necessary info, in light of past experience, the attorney can provide guidance as to whether it is appropriate to file or not, as well as the legal fees. If the case is taken on, the attorney will help with the research, including guiding the applicant as to obtaining the required documents, drafting necessary documents and forms and preparing the EB-2c NIW package in the proper manner to increase the chance of success. But please note that there are no guarantees of success.

Important Notes

1) There are backlogs for Immigrant Visas in these types of cases, in particular for China and India. For timetables, please see the State Department's  Visa Bulletin.

2) Previous holders of J-2 Visas may be subject to the 2-year home country requirement. This would not allow them to get a Green Card ("Adjust Status") for a period of time.

Related Regulations and Statutes: Regulations: INA § 203(b)(2), 8 U.S.C. § 1153(b)(2), 8 CFR § 204.5(k)

*Please consult the USCIS or State Department website for current fees.

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(310) 582-5904
info@jqklaw.com

Overview

​The Employment-Based 2nd Preference Prong "C" (EB-2c) is an Immigrant Visa category established for immigrants "holding advanced degrees or their equivalent" and "individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States." 

Scientists and Researchers frequently use this category to obtain Lawful Permanent Residence (Green Card) in the U.S., but other professionals that can show prospective national benefit to the U.S. through their work can also apply. Note that some EB-2c Applicants may also apply forEB-1a Extraordinary Talent Immigrant Visas. Filing multiple petitions at once are allowed.​​

EB-2c National Interest Waiver (NIW) Green Cards

EB-2c Employer Based Second Preference: 
National Interest Waiver (“NIW”) (E21, INA § 203(b)(2))

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