C Original And Duplicate Permanent Labor Certification Requirements
While photocopies of other initial supporting documents are generally acceptable, the petitioner must submit the original permanent labor certification unless it has already been filed with another petition.
Issuance of a Duplicate Permanent Labor Certification
If the original permanent labor certification has been lost, DOL does not issue a duplicate permanent labor certification to the petitioner but issues a duplicate directly to DOS or USCIS for ETA Form 9089 permanent labor certifications. DOL only issues these duplicates for permanent labor certifications filed on or after March 28, 2005 and only at the request of DOS or USCIS.
A beneficiary, petitioner, or a beneficiarys or petitioners attorney or agent must therefore explain the need for a duplicate to USCIS and USCIS may then request that DOL issue a duplicate. DOL retains permanent labor certification information for 5 years and can only issue duplicates during that time frame. The USCIS request must include documentary evidence that a visa application or petition has been filed and must include the U.S. embassy or consulate or USCIS case tracking number that is associated with the visa application or petition.
An officer should not make such a request to DOL if the petitioners attorney requested a duplicate permanent labor certification in general correspondence to USCIS, merely because he or she would like a copy for his or her records.
What Is The Real Difference Between Eb2 Niw And Eb1
The requirements in EB2 NIW and EB1-A are different, and the application preparation is significantly different between these two classifications. Successful EB2 NIW cases are not limited to those foreign nationals who have risen to the very top of their field. Presenting materials in support of the petition that frame the case in the most favorable light will aid its passage. For example, it is important that the petitioner construe the foreign national’s field as narrowly as is possible while maintaining credibility. By narrowing the frame of reference, the foreign national will be compared to a much smaller set of U.S. peers. However, it should be noted that the AAO might suspect petition that construes the foreign national’s field too narrowly. The definition of the foreign national’s expertise field should be supported by documentation. But once your I-140 is approved, there is no major difference between these two classifications for the I-485 application later. It is possible to file two petitions such as an EB2 NIW and a EB1-A at the same time, which many of our clients did. There is nothing stated in the law that prohibits multiple filings and the cases should be adjudicated independently.
If My Eb2 Niw Petition Gets Denied How Long Do I Have To Wait To File Under Eb2 Niw Or Other Categories Again
The law does not restrict the time you can file your EB2 NIW petition after the denial of your previous filing. A previously denied petition does not bar you from submitting another petition subsequently, regardless which classification is concerned. However, unless your circumstances have improved, it is not advisable to simply submit a similar petition again.
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What Are The Differences Between Regular Eb2 Visa And Eb2 Niw Petitions
For an ordinary EB2 case, a U.S. employer needs to act as the case petitioner, and the petitioner needs to obtain a labor certificate before filing Form I-140 for the foreign national. The foreign national is called the “beneficiary”. The petition needs to establish the qualifications of the foreign national . For an EB2 NIW case, the foreign national can self-petition the case.
The petition not only needs to establish the foreign national’s qualifications under EB2, but also demonstrate that the qualifications satisfy the National Interest Waiver requirements . Generally, it is more difficult to obtain immigration benefit under EB2 NIW than the ordinary EB2 because of the additional requirements for “national interest”. However, we at North America Immigration Law Group have successfully helped more than 10,000 clients obtain EB2 NIW approval, with the overall approval rate close to 100%.
E Revocation Of A Permanent Labor Certification
DOL may take steps to revoke the approval of a permanent labor certification if a subsequent finding is made that the certification was not justified. In such instances, DOL provides notice to the employer in the form of a Notice of Intent to Revoke that contains a detailed statement of the grounds for the revocation of the approved permanent labor certification and the time period allowed for the petitioners rebuttal.
The petitioner may submit evidence in rebuttal within 30 days of receipt of the notice. If rebuttal evidence is not filed by the petitioner, the NOIR becomes the final decision of DOL.
If the petitioner files rebuttal evidence and DOL determines the certification should nonetheless be revoked, the petitioner may file an appeal within 30 days of the date of the adverse determination. If the permanent labor certification is revoked, DOL also sends a copy of the notification to USCIS and DOS.
Permanent labor certifications remain valid unless and until they are revoked. Officers should provide notice to the petitioner in the form of a Notice of Intent to Deny or NOIR if the record reflects that the underlying permanent labor certification has been revoked. This notice gives the petitioner an opportunity to supplement the petition with a valid permanent labor certification. If the rebuttal evidence provided in response to the NOID or NOIR does not include a valid permanent labor certification, USCIS denies or revokes the approval of the petition.
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Q I Havent Published Any Articles In Journals In My Field Can I Still Apply For Eb
Yes, you can still apply for an NIW even if you dont have any published work. The published article requirement is just one out of the many criteria given by the USCIS. If you have the academic qualification and/or years of industry experience stipulated for NIW, you may still qualify without the evidence of a published article.
The same applies to the Awards and Professional Membership criteria. It is not mandatory to have all these before you can qualify. In fact, the USCIS allows those with comparable evidence of eligibility that are not exactly as listed on the website to file an NIW petition. The most important thing is how compelling the petition is.
What Is A National Interest Waiver And Who Qualifies
The National Interest Waiver is a second employment preference immigrant visa petition that requires that the individual has exceptional ability and whose work is in the national interest of the United States. One of the advantages of this for individuals is that they can self-petition, but employers can also use it to retain their top talent.
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National Interest Waiver Criteria
In addition to providing evidence of an advanced degree or exceptional ability, the foreign national must also meet the 3 National Interest Waiver criteria in order to demonstrate that it is in the national interest that USCIS waive the requirement of a job offer, and thus the labor certification.
- The proposed endeavor has both substantial merit and national importance.
- You are well positioned to advance the proposed endeavor.
- It would be beneficial to the United States to waive the requirement of a job offer, and thus the labor certification.
What Defines National Interest
In order to determine whether or not your work is in the nations interest, seven factors are considered by the Immigration Service:
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I Am Outside The Us Can I Apply For The Eb2 Niw Category What Is The Success Rate
Yes. Our firm has successfully petitioned for many clients who were outside the U.S. to obtain Green Cards in the EB2 NIW category. Although the adjudicating officers primarily focus on the foreign national’s credentials when adjudicating an EB2 NIW petition, there are specific requirements that foreign nationals who are still outside the U.S. need to satisfy for a successful petition.
For more information, please see our article at:
Who Qualifies For Each Type Of Eb
Instead of verifying eligibility through an advanced degree or exceptional ability, an EB-2 applicant under the National Interest Waiver must meet three requirements: substantial merit and national importance, individual qualifications, and benefit to the United States. A National Interest Waiver applicant must demonstrate that he or she meets these requirements to United States Citizenship and Immigration Services .
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First Requirement: Substantial Merit & National Importance
To receive a National Interest Waiver, an applicant must first prove that the business or employment endeavor the applicant seeks in the United States is one that has substantial merit and national importance in areas such as business, entrepreneurialism, science, technology, culture, health, or education, among others.
In order to have substantial merit, it is not required that the applicants proposed endeavor have significant economic impact, though this may be favored. On the other hand, endeavors that seek to further human knowledge of societal benefit may qualify despite not having significant economic benefit.
An endeavor is deemed to have national importance if its potential prospective impact has national or global implications in the applicants particular field. However, there is no geographic limitation when determining the national importance of the applicants endeavor. An endeavor may have profound impact in one locale and still be deemed to have national importance.
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Niw Legal Requirements: Qualifying For National Interest Waiver
Since the National Interest Waiver is a subcategory of EB-2, you are legally required to meet the qualifications for the first two subcategories of the EB-2 visa. You must then present further evidence as to why your work can be used on a national level.
There are base criteria for EB-2 visas for either the advanced degree or the exceptional ability subcategories, including the following. For an advanced degree, you must have a U.S. advanced degree or a foreign equivalent. You must also have letters from your future or current employer. For exceptional ability, you must have a significant level of expertise in your field of work and meet EB-2 criteria.
You need to meet at least three of the legal requirements for EB-2:
- Recognition for your significant contributions to your field
- Membership in a professional association
- A professional license to practice your occupation
- Evidence you commanded a salary
- An official academic record that presents your expertise and ability from your academic institution such as a:
- College/university/institutions of learning award
There is not a set number of letters of recommendation required for EB-2 NIW eligibility. However, the more proof of evidence you can present to solidify your expertise, the stronger your case will be.
In addition to the foundational EB-2 criteria, the legal EB-2 NIW requirements specifically for the NIW category include:
How Should I Organize The Evidence With The Petition
Follow the tips below for how to organize your evidence:
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Contact An Experienced Niw Lawyer
If you are wondering about the National Interest Waiver, the attorneys at Scott D. Pollock & Associates P.C. are here to answer your questions. With over 70 years of combined experience, an NIW attorney at our law firm will be able to help you navigate the process of applying for your EB-2 NIW. Applying for a National Interest Waiver can be a confusing process requiring a strong presentation of your skills. An NIW attorney will be able to help construct your case and fill out an NIW self-petition if need be. Contact us at 312.444.1940 to set up a consultation today.
Does Priority Date Matter In A Eb
Priority date mostly matters for people from China and India because priority date is not current for people born in these two countries. The retrogression can be for several years. Usually, the priority date for foreign nationals born in the rest of the countries is current under EB-2 visa. However, according to the Department of State , the priority date may not be current for the months close to the last month of the fiscal year .
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Eb2 Niw: A Visa For Qualified Professionals
The EB2 NIW is a visa designed to allow individuals to obtain permanent residency in the United States without a job offer from a US employer, if they can show that they intend to work towards the National Interest of the United States and have a distinguished professional history.
It is one of only three methods of obtaining an employment based green card without sponsorship from a US employer, the others being the EB-1A or a substantial investment.
The first requirement of the NIW is to show that the individual has either an Advanced Degree , a baccalaureate degree and 5 years of progressive experience, or Exceptional Ability.
What Standard Does The Uscis Take To Determine A Eb2 Niw Case
The decision Matter of Dhanasar established new standards for obtaining EB2 NIW petitions that the USCIS adopted. The AAO held that three factors must be considered when evaluating a request for an EB2 NIW:
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What Should A Foreign National Provide To Demonstrate That He/she Is Well Positioned To Advance The Proposed Endeavor Under The Matter Of Dhanasar Decision
A EB2 NIW petition needs to establish that the foreign national is well positioned to advance the proposed endeavor- that he/she has strong standing in his/her field and can be reasonably expected to continue their work successfully in the U.S. Examples of evidence can be detailed expert letters that demonstrate the interest of the U.S government in the petitioners research, documentation that the foreign national played a significant role in projects funded by governmental grants, and evidence of the foreign nationals education background, skills, knowledge, expertise, and other notable achievements in his or her field including notable memberships or media reports.
Can I Reuse Recommendation Letters From Other Visa Applications
Broadly speaking, no, its not advisable to reuse letters. Recommendation letters are not the same as expert letters, as the language in the latter will often be more pointed than in the former. You will also want letters from experts who are not necessarily your work colleagues or previous employers. So if youve already gathered recommendation letters for other visa applications, you should probably still collect new letters written by experts specifically for this petition. That being said, if youre sure that the recommendation letters contain all the information you need for your EB-2 NIW petition, then you may use them.
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May A Foreign Medical Degree Qualify As The Equivalent Of A Us Md Degree For The Purpose Of An Eb2 Petition
A foreign medical degree may qualify as the equivalent of a U.S. M.D. degree if, at the time of the filing of the labor certification application, several conditions are met. The foreign national must establish that he or she:
Who Qualifies For An Eb2
The following individuals are eligible to apply for an EB2-NIW:
- A foreign national who meets the educational requirements, and
- A foreign national who meets the three-prong test in Matter of Dhanasar decision listed below:
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How Difficult Is It To Have The Eb2 Niw Approved
A foreign national seeking to meet the EB2 NIW standard must show that his/her qualifications are significant enough to prove prospective national benefit. The burden will rest with the foreign national to establish that exemption from or waiver of a job offer will be in the national interest. Each case will be adjudicated on its own merits. If a beneficiary is qualified, the chance of success depends largely on the way the case is presented. If the evidence is relevant and well presented, and the argument is made persuasively, there is a good chance of case approval. But each case approval is up to the immigration officer’s discretion and not all officers adjudicate cases in the same way.
