The EB-2 NIW is repeatedly confused with the EB-1A<\/a>, a first-preference employment-based green card path that depends on \u00a0the extraordinary ability<\/strong> in the arts, sciences, business, education, or athletics. It is easy to see how the EB-2 NIW \u201cexceptional ability\u201d eligibility requirement can be confused with the EB-1A \u201cextraordinary ability\u201d requirement, but there are key differences between the two.<\/p>\n The main difference between the EB-2 NIW and the EB-1A is that the latter is designed for those who have extraordinary ability. <\/strong>You can meet the EB-1A extraordinary ability criteria by satisfying three of the ten criteria, which can be found here<\/a>, or can provide evidence that you have received a significant achievement of national or international recognition<\/strong>, like a Pulitzer Prize or an Oscar. Meanwhile, the EB-2 NIW caters to those with at least a master's degree or those with a bachelor's degree plus five years of post-graduate experience. It is also suited for those with exceptional ability in their field, who USCIS definition<\/a> as \u201ca level of expertise significantly above that which is ordinarily found in the sciences, arts, or business.\u201d An example of this is a therapist who has received recognition and awards for their studies and work in their field.<\/p>\n Mistake # 2: Thinking You Need a Sponsor for the EB-2 NIW<\/strong><\/p>\n If you have researched other employment-based green card pathways, you are probably familiar with the fact that many pathways require employer sponsorships. However, the EB-2 NIW does not require this, but rather you request it yourself<\/strong>.<\/p>\n Essentially, the EB-2 NIW is a self-petitioning option for the EB-2 green card pathway. On its own, the EB-2 pathway is suited for those with an advanced degree, those with a bachelor's degree plus five years of post-graduate experience, or those with exceptional ability., but it also requires employer sponsorship<\/strong>. This adds several additional steps to the application process, as your employer will eventually have to obtain a Employment verification<\/a> , a costly and lengthy process.<\/p>\n So, how does the EB-2 NIW allow you to self-petition? The National Interest Waiver component of the EB-2 NIW completely eliminates the labor certification requirement. <\/strong>Instead, it requires you to demonstrate that your work is in the interest of the United States, which then waives the labor certification and sponsorship requirements. Although proving this requires more work on your part, since you will have to gather supporting evidence and draft a cover letter and report detailing your credentials, experience, and plans to work in the United States, the main advantage is that you will not have to find an employer willing to hire you and undergo the labor certification process to apply.<\/p>\n Error #3: Insufficient evidence provided <\/strong><\/p>\n Although the EB-2 NIW green card pathway provides the flexibility to file the petition yourself, it also has a long list of eligibility requirements<\/a>. The EB-2 NIW relies heavily on you establishing a proposed effort <\/strong>or specific plans for your career or research in the United States. This must meet the three points of the EB-2 NIW, which include the following:<\/p>\n Therefore, you not only have to establish a proposed effort, but you also have to show how you plan to carry out the effort and how it will benefit the United States.<\/p>\n This is an example<\/a> Of a proposed endeavor that the Administrative Appeals Office (AAO) accepted: A UK-based consultant planned to work for various non-profit organizations and government groups to improve healthcare and services for U.S. veterans. The consultant had several years of experience doing the same work in the UK. The AAO found that this proposed endeavor met the criteria of substantial merit and national importance.<\/p>\n On the other hand, the AAO rejected an applicant<\/a> that he wanted to work as a lawyer providing pro bono and low-cost services to impoverished communities. Although the AAO agreed that this endeavor had substantial merit, they ultimately rejected it because the applicant did not demonstrate how his work would benefit the United States as a whole. Instead, the applicant only described how his services would benefit his clients. Perhaps if the client had explained how his work could help revolutionize veterans' services in the country, the AAO might have approved his proposed endeavor.<\/p>\n That said, it is important that you not only have a solid endeavor proposal, but also provide ample information on how you will carry out your plan. Then, you must describe how your endeavor will have a positive impact on the United States. This is best executed when you include abundant details and research.<\/p>\n A common misconception about satisfying the national importance component is that pointing to a high growth rate in a specific occupation is sufficient to meet this requirement. However, these statistics are generally not enough to meet the threshold, so it is important that you consider including additional evidence to strengthen the argument for national importance.<\/p>\n Error #4: Failure to Pay the Asylum Program Fee<\/strong><\/p>\n In January 2024, USCIS published a final rule<\/a> that adjusted many application fees, eliminating some fees altogether. Because of this, USCIS has lost some revenue. USCIS hopes to continue supporting certain programs, such as the asylum program, by implementing the Asylum Program Fee for certain applications. This fee was first implemented on April 1, 2024. Because this fee is relatively new, it is easy to forget to submit it. However, it is imperative that you pay it because If you do not submit the correct fees, your form will be rejected. <\/u><\/strong><\/p>\n Although the fee for the Asylum Program is generally $ 600, You only have to pay $ 300<\/a> when filing an EB-2 NIW, because the Asylum Program fee is reduced for small businesses and self-petitioners. To ensure that you only have to pay $ 300, when completing Form I-140 (Immigrant Petition for Alien Workers), check \u201cyes\u201d for Part 1, Question 6 of the form. This question applies if you employ 25 or fewer full-time employees. If you are paying all fees by check, you must pay the $715 for Form I-140 and the $300 for the Asylum Program fee using separate checks.<\/p>\n Error #5: Failure to consider the visa bulletin<\/strong><\/p>\n If you are from India or China and are interested in the EB-2 NIW, it is imperative that you realize there will be longer waiting times for your EB-2 NIW to be processed. As of August 2024, <\/strong>USCIS is processing most second-preference employment-based visas from March 2023, but for those from mainland China and India, USCIS is processing applications from March 2020 and July 2012, respectively<\/a>, mainly because there is a large backlog of applications from these countries. Therefore, if you are from mainland China and file your EB-2 NIW now, it will take at least four years for your application to be processed. If you are from India, it could be more than 12 years.<\/p>\n However, this should not deter you from filing for the EB-2 NIW. <\/strong>Yes, it will take longer for your application to be approved, but if you currently live in the US with a visa, there are ways to extend your visa, especially if you have an H-1B visa<\/a>, while awaiting approval of your EB-2 NIW. If you cannot file your Form I-485 (Adjustment of Status), It is also possible to change your status to O-1 or E-2 while waiting for your EB-2 NIW to be approved<\/a>.<\/p>\n Next steps<\/strong><\/p>\n As we have learned in today's post, there are many mistakes that can be made when filing for the EB-2 NIW. This can definitely add pressure to you, especially if you are filing for the EB-2 NIW on your own. Hiring an immigration attorney can reduce the risk of these mistakes being made and minimize the possibility of your petition being denied. Here at Eagan, senior business immigration attorney Hannah Whaley has experience in the world of EB-2 NIWs. Attorney Whaley will evaluate your case to determine if you meet the eligibility requirements and will present unique and creative arguments to meet the \u201cthree-pronged\u201d requirement. She will also fill out the required forms to ensure they are completed as required by USCIS. Finally, she will keep you informed on how your case is progressing and will be available to answer your questions about priority dates. Having a trusted business immigration attorney by your side will not only minimize your worries during the filing process.<\/p>\n References:<\/strong><\/p>\n Employment-Based Immigration: First Preference EB-1, <\/em>USCIS, (March 1, 2022), Employment-Based Immigration: First Preference (EB-1) | USCIS.<\/a><\/p>\n Employment-Based Immigration: Second Preference (EB-2)<\/em>, USCIS, (April 20, 2022), Employment-Based Immigration: Second Preference (EB-2) | USCIS.<\/a><\/p>\n Proposed Successful Efforts for EB-2 NIW Green Card Applications<\/em>, Shaffer Immigration Act, (January 17, 2023), Proven Strategies for Successful EB-2 NIW Green Card Applications (shafferimmigrationlaw.com)<\/a>.<\/p>\n U.S. Citizenship and Immigration Services Fee Schedule and Changes to Other Immigration Benefit Request Requirements<\/em>, Federal Register, (January 31, 2024), Federal Register :: U.S. Citizenship and Immigration Services Fee Schedule and Changes to Other Immigration Benefit Request Requirements<\/a>.<\/p>\n Introduction to the Asylum Program Fee Schedule, <\/em>EB-2 NIW, Introduction to the Asylum Program Fee | Eb2niw (myeb2niw.com)<\/a><\/p>\n USCIS reminds certain employment-based petitioners to submit the correct required fees, <\/em>USCIS, (April 29, 2024), USCIS Reminds Certain Employment-Based Petitioners to Submit the Correct Required Fees | USCIS.<\/a><\/p>\n Explanation of the EB-2 NIW Priority Date (2023 Update),<\/em> Scott Legal, P.C., (June 1, 2023), EB2 NIW Priority Date Explanation (2023 Update) | Scott Legal, P.C. (legalservicesincorporated.com)<\/a>.<\/p>\n\n
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