by Victoria Chen, J.D.(陈品瑞律师法律博士)
Q1: What is EB2-National Interest Waiver (NIW)?
A: Generally, application of second preference of employment-based immigrant visa, unlike first preference, requires a specific job offer and a labor certification. However, a foreign person may seek a waiver of the offer of employment by establishing that his admission to permanent residence would be in the “national interest“.
Q2: What are the differences between EB-2 and EB-2 NIW petitions?
A: For an ordinary EB-2 case, the foreign beneficiary needs an employer sponsor and the petitioner (employer) needs to obtain a labor certification before filing Form I-140. The foreign person therefore is called beneficiary. The petition needs to establish the qualification of the foreign beneficiary (foreign beneficiary with advanced degree or exceptional ability). For an EB-2 NIW case, the foreign national can do self-petition or have his/her employer be the petitioner. The petition not only needs to establish the foreign nationals's qualifications under EB-2 but also the qualification of national interest waiver (NYDOT three-prong test). Generally, it is more difficult to obtain immigration benefit under EB-2 NIW than ordinary EB-2. However, if you do not have an employer to do the sponsorship, you can only file NIW.
Q3: If I am qualified for NIW case, should I do self-petition or ask my employer to be my sponsor?
A: Cases seem to show a slight difference between foreign nationals who have self-sponsored their own petitions versus foreign nationals who are sponsored by their companies. Generally speaking, if the foreign national's employer has a distinguished reputation in the field, it is preferable to have the company or organization act as the petitioner. However, if the foreign national has been qualified for NIW, there should be no difference who files the petition.
Q4: What does NIW waive?
A: The national interest waiver waives the labor certification process and the necessity of having an offer of employment, but it does not waive the basic “entry“ requirements for second preference classification. Therefore only after the second preference threshold be satisfied can a national interest waiver be considered.
Q5: Who qualifies under EB-2?
A: This preference benefits foreign persons who have advanced degree or their equivalent in professional fields OR exceptional ability in the sciences, arts, or business.
Q6: What is advanced degree for the purpose of EB-2?
A: Advanced degree for the purpose of EB-2 is a United States advanced degree ( degrees above a bachelors) or a foreign equivalent degree.
Q7: What is the “equivalent in professional fields“ of advanced degree?
A: If the foreign beneficiary has only received a United States baccalaureate degree or a foreign equivalent degree. The experience of at least five years of progressive, post-baccalaureate experience in the specialty plus the bachelor's degree will suffice the degree requirement.
Q8: Is there any restriction of equivalent in professional fields of advanced degree?
A: The USCIS has established a policy that the labor certification on which the preference petition is based must establish the employer's minimum requirements as a bachelor's degree and five years of experience or a master's degree. If the alternatives are not specified in the labor certification, the USCIS will not accept the bachelor's degree and five years of experience as the equivalent of a master's degree.
Q9: What is “exception ability“ for the purpose of EB-2 petition?
A: The other group in the second employment-based preference includes foreign nationls with exceptional ability in the sciences, arts, or business. Athletes may be considered aliens of exceptional abilities in the arts for purposes of qualifying in the second employment-based preference.
Q10: Who has “exceptional ability“?
A: The law does not specify the definition of “exceptional ability.“ However, the law does indicate that the foreign beneficiary must have a degree of expertise above that ordinarily encountered in his or her field.
http://www.wegreened.com
Q1: What is EB2-National Interest Waiver (NIW)?
A: Generally, application of second preference of employment-based immigrant visa, unlike first preference, requires a specific job offer and a labor certification. However, a foreign person may seek a waiver of the offer of employment by establishing that his admission to permanent residence would be in the “national interest“.
Q2: What are the differences between EB-2 and EB-2 NIW petitions?
A: For an ordinary EB-2 case, the foreign beneficiary needs an employer sponsor and the petitioner (employer) needs to obtain a labor certification before filing Form I-140. The foreign person therefore is called beneficiary. The petition needs to establish the qualification of the foreign beneficiary (foreign beneficiary with advanced degree or exceptional ability). For an EB-2 NIW case, the foreign national can do self-petition or have his/her employer be the petitioner. The petition not only needs to establish the foreign nationals's qualifications under EB-2 but also the qualification of national interest waiver (NYDOT three-prong test). Generally, it is more difficult to obtain immigration benefit under EB-2 NIW than ordinary EB-2. However, if you do not have an employer to do the sponsorship, you can only file NIW.
Q3: If I am qualified for NIW case, should I do self-petition or ask my employer to be my sponsor?
A: Cases seem to show a slight difference between foreign nationals who have self-sponsored their own petitions versus foreign nationals who are sponsored by their companies. Generally speaking, if the foreign national's employer has a distinguished reputation in the field, it is preferable to have the company or organization act as the petitioner. However, if the foreign national has been qualified for NIW, there should be no difference who files the petition.
Q4: What does NIW waive?
A: The national interest waiver waives the labor certification process and the necessity of having an offer of employment, but it does not waive the basic “entry“ requirements for second preference classification. Therefore only after the second preference threshold be satisfied can a national interest waiver be considered.
Q5: Who qualifies under EB-2?
A: This preference benefits foreign persons who have advanced degree or their equivalent in professional fields OR exceptional ability in the sciences, arts, or business.
Q6: What is advanced degree for the purpose of EB-2?
A: Advanced degree for the purpose of EB-2 is a United States advanced degree ( degrees above a bachelors) or a foreign equivalent degree.
Q7: What is the “equivalent in professional fields“ of advanced degree?
A: If the foreign beneficiary has only received a United States baccalaureate degree or a foreign equivalent degree. The experience of at least five years of progressive, post-baccalaureate experience in the specialty plus the bachelor's degree will suffice the degree requirement.
Q8: Is there any restriction of equivalent in professional fields of advanced degree?
A: The USCIS has established a policy that the labor certification on which the preference petition is based must establish the employer's minimum requirements as a bachelor's degree and five years of experience or a master's degree. If the alternatives are not specified in the labor certification, the USCIS will not accept the bachelor's degree and five years of experience as the equivalent of a master's degree.
Q9: What is “exception ability“ for the purpose of EB-2 petition?
A: The other group in the second employment-based preference includes foreign nationls with exceptional ability in the sciences, arts, or business. Athletes may be considered aliens of exceptional abilities in the arts for purposes of qualifying in the second employment-based preference.
Q10: Who has “exceptional ability“?
A: The law does not specify the definition of “exceptional ability.“ However, the law does indicate that the foreign beneficiary must have a degree of expertise above that ordinarily encountered in his or her field.
http://www.wegreened.com
