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Advanced Degree and Exceptional Ability for EB2 National Interest Waiver Petition

1. NIW Application for Professional Aliens Holding an Advanced Degree 

To qualify for NIW application, an alien applicant should have an advanced degree and exceptional ability in sciences, arts or business. The "advanced degree" is defined as postgraduate degree beyond a bachelor degree, at a minimum, a Master Degree or its equivalent.  

The "equivalent" of a U.S. Master Degree is the Bachelor Degree followed by at least 5 years of progressive experience in the specialty.  Experience may NOT be substituted for the Bachelor Degree in establishing eligibility of NIW application. In addition, if applicant's specialty customarily requires a Doctoral Degree, the applicant should possess such a degree. An alien can satisfy the advanced degree requirement by holding any of the following:

1) a U.S. Master Degree or higher, or a foreign degree evaluated to be the equivalent of a U.S. Master Degree or higher; or

2) a U.S. Bachelor Degree, or a foreign degree evaluated to be the equivalent of a U.S. Bachelor Degree, plus five years of progressive, post-degree work experience. An alien who does not possess at least a Bachelor Degree or a foreign equivalent degree will be ineligible for this classification.

For NIW application, USCIS will not accept an education evaluation to determine an equivalency to a Bachelor Degree. USCIS has determined that five years of progressive experience in a specialty after obtaining the Bachelor Degree will be considered an equivalent to a Master Degree.

2. NIW Application for Aliens with Exceptional Ability In Sciences, Arts Or Business

An alien applicant may qualify for "Aliens of Exceptional Ability" if:

1) the alien applicant has exceptional ability in the sciences, arts, or business,

2) the alien applicant will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and

3) if the alien's services in one of those fields are sought by an employer in the United States. 

The law defines "exceptional ability" as "a degree of expertise significantly above that ordinarily encountered."  The USCIS has enumerated six factors that denote exceptional ability. If an applicant meets three of these, he or she will qualify for the classification of Alien of Exceptional Ability. The individual must be able to provide to the USCIS at least three of the following items:

• An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;

• Evidence in the form of letters from current or former employers showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;

• A license to practice the profession or certification for a particular profession or occupation;

• Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;

• Evidence of membership in professional associations; or

• Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

The alien applicant provided evidence must be indicative of or consistent with a degree of expertise significantly above that ordinarily encountered. Therefore, evidence submitted to establish exceptional ability must somehow place the alien above others in the field in order to fulfill the criteria; qualifications possessed by every member of a given field cannot demonstrate a degree of expertise "significantly above that ordinarily encountered." 

The USCIS regulation provides that mere possession of a degree, diploma, certificate or similar award from a college, university school or other institution of learning shall not by itself be considered sufficient evidence of exceptional ability. To meet the criterion set forth in the regulation, formal recognition in the form of certificates may have more weight than letters prepared for the application "recognizing" the alien's achievements.

3. An Self-Evaluation for EB2 National Interest Waiver Petition 

First, you need to answer there two questions:

• Is your field within the areas of sciences, arts, or business?
• Can you present evidence of at least 3 of the following?

1. An advanced degree (Master or above) related to the area of exceptional ability;
2. Evidence in the form of reference letters form employers or experts that you have at least two years experience in the   area in which your work will benefit the United States;
3. A license to practice in your field;
4. Evidence that you have commanded a salary higher than others in your field;
5. Membership in professional associations;
6. Recognition for significant contributions to your field.

The USCIS also suggested that the following seven factors could be taken into consideration for NIW application:

1. Improving the U.S. economy;
2. Improving wages and working conditions of U.S. workers;
3. Improving education and training programs for U.S. children and under-qualified workers;
4. Improving health care;
5. Providing more affordable housing for young and/or older, poorer U.S. residents;
6. Improving the environment of the U.S. and making more productive use of natural resources;
7. A request from an interested U.S. government agency or improving international cultural understanding

The above list is not exhaustive. The changes in the law have made it not easy for persons to qualify for the National Interest Waiver. As such, it is difficult to define exactly what qualifies a person for the National Interest Waiver or not. There are a few main questions that you should ask yourself when completing this evaluation:

1. Do I possess unique knowledge, abilities or experience that set me apart from my peers?
2. Will I, through the use of this knowledge, significantly benefit my field?
3. Does my field have substantial intrinsic merit?
4. Will the benefit I bring to the U.S. be a national benefit?
5. Will the national interest of the U.S. be adversely affected by requiring me to go through Labor Certification?

If you have answered Yes to most of these questions, you may qualify for the National Interest Waiver. We know that this can be confusing, and that it is difficult to grasp the many possibilities that are facing you. Just remember, when it comes to decide if you qualify for an EB1-EA, EB1-OR, or NIW, a honest and reasonable analysis is very helpful for your application.

4. How to Submit Evidence to Present a Strong Case that an Alien Applicant Is Considered Having Exceptional Ability

According to USCIS, the following evidence may present a strong case that an alien applicant is considered exceptional:

1) presentations at academic symposia;

2) published articles in scholarly journals;

3) testimony from other experts on the alien's contribution to the field;

4) a number of entries in a citation index citing the aliens work; or

5) participation by the alien applicant to judge the work of other professionals.

All non-English language documents must have an English translation for the pertinent parts of the documents that help to establish eligibility. If you would like USCIS to consider evidence that is written in a foreign language, you must submit English language translation for the parts of the document that could help to establish eligibility for the requested benefit. The translator must certify that:

• The translation are accurate and complete, and

• The translator is competent to translate from the foreign language into English.

5. Provide the Citations in NIW Application, for Some Applicants Working in Science and Engineering Fields  

For USCIS to determine the number of citations that you received, you should clarify the number of citations that you received regarding your work, such as: 

1) how many overall citations that you have received? 

2) of these citations, how many citations were for articles that you are the first-author? 

3) how many were independent citations, and how many were cited by yourself?

You should also explain how you have significantly impacted your field. As a researcher, you should provide evidence to prove that you are not simply conducted research within your field, but have made some important discoveries.

6. The Process of U.S. Permanent Residency (Green Card) Petition in the Category of EB2 National Interest Waiver

For an alien applicant to seek U.S. permanent residency in EB2 National Interest Waiver category, the following is the process:

1) The alien applicant should file Form I-140 application, Petition for Alien Worker, and also submit required evidence to USCIS. (It is possible to file From I-485 application concurrently with Form I-140 application)

2) Upon approval of Form I-140, the alien beneficiary should file Form I-485 application for adjustment of status when the immigrant visa is "current"; an immigrant visa number is not always available for EB2 National Interest Waiver petition, and if the alien beneficiary is in U.S. (On the other hand, if the alien beneficiary is outside the United States, the alien could complete the "Consular Processing" of status adjustment at a nearest U.S. consulate office.)

3) If the From I-485 application is approved by USCIS, the alien beneficiary is granted U.S. permanent resident status, and will receive a permanent resident card (Green Card) in mail. (If the alien beneficiary went through the immigrant visa process overseas, the alien beneficiary can enter the U.S. and receives an immigrant visa attached to the passport at the U.S. port of entry, to serve as evidence of immigrant status until receiving the Green Card in mail.)

The Consular Processing is a method that you can apply for an immigrant visa at a U.S. consulate overseas after your Form I-140 petition is approved and you are not in U.S. If the Form I-140 petition is approved and you are not in the United States, the USCIS will send the approved Form I-140 petition to the National Visa Center of Department of State. The National Visa Center will send you a notice of receipt. The National Visa Center will send you another notice indicating when you should submit the immigrant visa processing fees and supporting documentation. 

7. How to Effectively Organize the Evidence Accompanied with Form I-140 Petition based on NIW

Follow the tips below for how to organize the evidence: 

1) Provide all required documentation and evidence with the petition when filed. Form I-140 petitions may be denied without issuing a Request For Evidence (RFE) in the instances where the required evidence described in the instructions and regulations are not initially provided. If providing photocopies of documents, provide clear legible copies.

2) All foreign language documents must be submitted with a corresponding English translation. The English translation must be certified by a translator who is competent to translate and must verify in writing that “the translation is true and accurate to the best of the translator's abilities.“ It is helpful if the English translation is stapled to the foreign language document.

3) If documenting the alien's publications or citations of the alien beneficiary's work, highlight the alien's name in the relevant articles. It is not necessary to send the full copy of a dissertation, thesis, or research paper written by the alien beneficiary, or one in which the alien beneficiary's work has been cited. Include the title page and the portions that cite the alien's work. 

4) Tab and label the evidentiary exhibits at the bottom of the first page of each exhibit, and provide a list of the evidentiary exhibits and the eligibility criteria that each exhibit is submitted to establish for petitions supported by a substantial amount of documentation. An exhibit that is being provided to meet multiple eligibility criteria should be so identified in the exhibit list. 

When making a final decision regarding NIW eligibility, USCIS will first evaluate the evidence submitted by the petitioner to determine which regulatory criteria the beneficiary meets in Part One of the analysis. If the petitioner establishes that the beneficiary has met the NIW criteria, then USCIS will evaluate all of he evidence in the record to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the a preponderance has the acclaim of U.S. national interest , and that the beneficiary ‘s achievements have been recognized in the field of expertise.

This is the petitioner’s responsibility to meet the legal burden of proof to establish eligibility in all respects. Whenever a alien applicant makes an application for an immigrant benefit, the petitioner shall bear the burden of proof to establish eligibility for the benefit sought. Therefore, the petitioner must prove, by the preponderance of the evidence, that the beneficiary is fully qualified for the benefit sought.

8. The Potential RFE Request for an EB2 National Interest Waiver Petition

To process the Form I-140 petition and determine the eligibility for EB2 National Interest Waiver petition, additional information may be required by USCIS. The Request For Evidence notice provides suggested evidence that could be submitted in consideration of each requested item. The petitioner should provide additional evidence that is believed to satisfy the request. The petitioner is responsible for providing that best shows that the NIW beneficiary meets all requirements. Evidence must show that the beneficiary was eligible for the requested benefit when the Form I-140 petition was filed.

A Request for Evidence (RFE) from a USCIS Service Center is that the USCIS adjudicator is requesting additional evidence to address and support specific parts of the pending I-140 petition. The petitioner may have certain days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives the response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.

When an USCIS officer is unable to complete the processing of your application without further information, the USCIS will issue the Request For Evidence. You should read and comply with the RFE request carefully, then submit the evidence to the address listed on the RFE notice. Include a copy of the RFE notice, and place the attached gold sheet on top of your documents.

You must submit the requested information before the deadline indicated in the RFE. Failure to do so may result in the denial of your application. The deadline reflects the maximum period for responding to a RFE. However, since many immigration benefits are time sensitive, you are encouraged to response to RFE request as early as possible, but no later than the date provided on the request.

To help you replying the RFE for your EB2 National Interest Waiver Petition, we provide the high quality and case-proven "Complete Do-It-Yourself Package of Request For Evidence (RFE), EB2-National Interest Waiver Petition." In the RFE package, we present methods of analyzing RFE questions, RFE replying strategies, means of strengthening your case, detailed RFE cases analysis, sample cover letters, sample reference letters, and more. 

With the RFE package, you get all the information you need and step-by-step knowledge and strategies of how to prepare an efficient, professional, and complete response to your RFE notice of EB-1A petition, and eventually get your Green Card. Please also visit "How to Prepare a Successful RFE Response for Your EB2 National Interest Waiver Application"

A Notice of Intent to Deny (NOID) is that the USCIS adjudicator is giving notice that USCIS will deny the pending case, unless you provide certain extra documentation. The petitioner may have certain days indicated in the NOID notice to respond. If the petitioner does not respond within the prescribed period, the petition may be denied. Once the USCIS receives your response to an NOID, further action will generally occur within 60 days, but may take longer.

If your EB2 National Interest Waiver petition is denied by USCIS, you can file a NIW petition again, or file in other categories. The immigration law does not restrict the time you can file an NIW petition again after the rejection of your previous NIW application. A previous rejected NIW petition does not bar you from submitting another NIW petition again subsequently, and regardless which immigrant classification is concerned. However, unless your situation has improved, it is not advisable for you to simply submit a similar petition again, because it is unlikely your case will be approved by USCIS.

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