EB-2 National Interest Waivers

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The new NIW Standards are at: http://www.immigration.com/blogs/new-standards-national-interest-waiver-...


In 1998, a decision by the AAO elaborated the standards for National Interest Waiver of the job offer requirement. 

The following criteria were established:
(1) the person seeks employment in an area of substantial intrinsic merit;
(2) the benefit provided by the beneficiary will be national in scope (serving a regional, local or private interest will not be sufficient); and
(3) the national interest would be adversely affected if a labor certification were required, i.e. the benefit derived from the particular alien’s unique skills in the national interest field of endeavor must considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process. The national interest exemption must be significantly higher than that required to establish prospective national benefit required for all persons seeking exceptional status.
To be exempt from the job offer requirement, the USCIS must determine that an exemption would be in the national interest. A labor certification is not required if a national interest waiver is granted. 

Qualified alien physicians who will be practicing medicine in an area of the United States certified by the Department of Health and Human Services as underserved may also qualify for this classification. Such physicians should agree to work full time in a designated health professional shortage area (HPSA) or in a Veterans Administration (VA) hospital and a federal agency or state department of public health determines that the physician’s work is in the public interest. The physician’s full time work should be for an aggregate of five years (not including time on J-1) before he/she is eligible for an Adjustment of Status.  These five years also should be completed within a six-year period from the time the employment is authorized or if already employment was authorized, then from the time the Alien Immigrant petition (I-140) was approved. Petitions and Adjustment of Status can be filed prior to the date when the five-year service is completed. Note that the USCIS has determined that the physician who is an I-140 beneficiary with a national interest waiver [under section 212(e) waivers are granted to physicians practicing in family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry] may file his/her adjustment of status application even if he/she has not completed the three- or five-year medical service requirement in H1-B status. In such cases, USCIS may not approve the Adjustment of Status until the physician has completed the three- or five-year requirement.


 Rajiv S. Khanna Discussing Immigration Options for Top Performers in Sciences,Business, Arts, Education, Athletics 
Green Card: 


Hi, I have masters from US university in computer science. Will I be eligible to apply under EB-2(NIA) as per new notification?

Hi Rajiv ji. I'm planning to do PhD program in law from New York university. Do I get eligible for green card after completion? I'm have also done my masters in law from New York for 1 year and did my LLB from India. Please reply. Thanks

Sushil ji, having a PhD does not automatically make you eligible for a green card.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

Rajiv ji,
First of all, thank you very much for taking time to help all of us with your expertise in immigration law.

I have few questions regarding NIW and I-140 "compelling" EAD.

1. I am going to finish my internal medicine residency in H1B status in a HPSA/MUA area in 3 months. I hold a letter addressing to USCIS from Department of public health stating that I served 3 yeas in HPSA/MUA area. I signed a job as a hospitalist where I treat in-patients who come from at least 30 mile radius. The county that I serve comes under HSPA/MUA but not the hospital when I search for NIW area by address since not all the zipcodes in the county fall under HSPA/MUA area. Can i still file for GC under EB2 NIW?

2. Lately I have been hearing (people from India) that after completing 5 years of service in NIW area and getting I-140 approved, USCIS is accepting applications for I-140 EAD though their priority dates are not current. If it gets approved will it be under compelling EAD? Also, if the EAD is approved, will the physician still need to maintain H1B status?

Thank you again!

Anand ji, the first question requires a fact-based review and perhaps a discussion with the State Health Department. Compelling circumstances EAD is is also unique to each set of facts. It is difficult to comment generically.

Note: Not intended to create attorney-client relationship.  Answers could be incomplete, incorrect or outdated.  Use caution.

How long it takes to have the I-140 approved? I'm planning to do my process through consular processing in Brazil. Do you know how long I have to wait until the interview? Tks.

Hi Rajiv,

I have my both masters and BS from US and I have industrial experience for 2 years in Pharmaceutical field. So far I have published 1 paper. My current supervisor is happy to provide a recommendation letter for the green card process. I am wondering whether will I be eligible to apply for the green card under EB2 or any other category .