Q: What is the Definition of National Interest Waiver?

A: The National Interest Waiver, or NIW, is an employment based second preference petition. It is so named because it asks that the otherwise required Labor Certification requirement be waived "in the U.S. National Interest." Thus, a beneficiary of a successful National Interest Waiver petition is exempt from the requirement that his or her employer first obtain a Labor Certification from the U.S. Department of Labor.

A person may qualify for the waiver of the Labor Certification or job offer requirement if they can show that their work will be in the national interest of the United States. This benefit is popularly called the National Interest Waiver. The burden of proof in National Interest Waiver cases rests solely with the petitioner. 

Q: Who may qualify for 'National Interest Waiver'?

A: A person qualifies for this benefit if he or she falls within the second preference employment based category, namely a person in the professions who either holds an advanced degree or is considered possessing exceptional ability in the sciences, business or arts.

While the U.S. Citizenship and Immigration Services (USCIS) has not established specific criteria for approving National Interest Waiver petitions, many examiners rely on a decision in a case decided years ago. In that case, the USCIS Administrative Appeals Office (AAO) suggested that the following seven factors could be taken into consideration:

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

Q: Which fields have the greatest chance of success for the NIW?

A: There is no such thing as the "greatest chance." It all depends upon the individual case. NIW's have been granted to mathematicians, physics researchers, environmental scientists, artists, civil engineers, geologists, physicians, agricultural economists, musical composers, trade experts, electrical engineers, programmers/analysts, semiconductor engineers, biomedical engineers, environmental geologists, transportation engineers, chemistry researchers, nutrition counselors, cancer research associates, biomedical researchers, medical physicists, medical laboratory associates, dance instructors etc.

Although the USCIS states that it will be flexible in determining who qualifies for the National Interest Waiver, it sometimes uses more stringent standards when deciding cases filed for people in the business and art than for people in the science and engineering.

Q: What is the most important part of the NIW petition?

A: Without a doubt, advocacy is the single most important part of a National Interest Waiver petition. In this case, advocacy means the way the law and facts are argued in support of the petition. A very large number of meritorious cases have been rejected because of poor advocacy and a very large number of marginal cases have been approved because of good advocacy.

Since the USCIS has not created any checklists (as is the case for EB1 Extraordinary Ability and EB1 Outstanding Researchers or Professors), an USCIS examiner must be persuaded that the case has merit. If the argument is too long and boring, the examiner will lose interest before understanding the merits of the case. If the argument is too short and unconvincing, the examiner will not be persuaded. A successful case strikes the right balance between sufficient detail and argument to establish eligibility, without unnecessary repetition or the inclusion of irrelevant facts or arguments. More than any other types of cases, NIW petitions are won or lost on the strength of the arguments presented.

Q. What type of work can be considered as in National Interest? Does it have to be research? 

A: For your work to be considered as in U.S. National Interest, the key issue here is how to collect evidence to prove your work is in National Interest. It does not have to be research, and it can be technology development, or management also. It is a common understanding, however, that scientific research and technology development keeps this country’s economy strong.

Q: What is the difference between an NIW and an EB-1? 

A: While there are many similarities between an alien who qualifies for an NIW petition and an EB1A or EB1B petition, the qualifications for each of the different petitions is actually distinct. In an NIW petition, the alien seeks first to show that he or she is a highly qualified individual in a field, and also claims to have the capacity to contribute to the U.S. national interest to a greater degree than other highly qualified individuals in the field, thus warranting the waiver of the standard job offer and Labor Certification requirement. 

By contrast, a person who qualifies in an EB-1 category must show that he or she is a top or outstanding individual in a field. According to U.S. immigration law, a top or outstanding individual is not required to get a Labor Certification to achieve employment based permanent residency.

Q: Between an NIW and an EB-1, which petition is recommended? What form should I file to seek the National Interest Waiver?

A: You should always keep in mind that filing both NIW and EB-1 petition concurrently is an option. If your case is clearly strong, your chances for success are higher by applying for EB1-Extraordinary Ability. However, if your case is not as distinguished as successful EB1-Extraordinary Ability case, a NIW petition would be the most sensible approach. 

The NIW petition consists of form I-140 - Immigrant Worker Petition. There are no other specified materials that are required by the USCIS regulations for a NIW petition. The remainder of the petition will depend upon whether the beneficiary is an "advanced degree professional" and an "exceptional ability alien." In addition, the petitioner has to show that the work to be done by the beneficiary will advance the national interest of the United States.

Q: What supporting documentation must be submitted to demonstrate the national interest?

A: Most of the successful petitions are documented by:

• Evidence such as a letter from an interested U.S. Government agency;
• Evidence showing that the alien's work is funded by the U.S. Government; and/or 
• Letters from distinguished scientists/ professors in the field attesting to the importance of the research. 

Cases involving health related research, defense related research, or energy related research have the greatest success rate.

Q. What is a recommendation letter? How many recommendation letters are enough to prove that I am qualify for the National Interest Waiver?

A: The recommendation letter is a letter written by an expert in the alien's field or some otherwise authoritative person in an allied or supported field. The letter discusses the abilities and accomplishments of the alien seeking a NIW. The recommendation letters are an important part of a NIW petition. 

Certainly, the more recommendation letters you have, the stronger evidences you may present. The quality of your recommendation letters also counts. You should ask someone that has certain credentials to write a recommendation for you. Those credentials include university professors, job supervisors with certain education background or high-level titles, ranked governmental officials, and scientists or engineers with doctorate degrees. Generally, three or four strong recommendation letters would be enough to present a case. Remember, a recommendation letter is not the sole evidence to prove your work is in national interest.

Q: Can Letters of Recommendation included in an EB-1 petition be used for a NIW petition? If I have filed an EB-1, when is my priority date? 

A: The Letters of Recommendation included in an EB-1 petition should not be used for a NIW petition. EB-1 Letters of Recommendation will not be effective for a NIW petition, since the EB-1 and NIW have different criteria. 

If you have filed a NIW petition, your priority date is the date that the USCIS receives your NIW petition. 

Q: Who should file the petition in a National Interest Waiver case? If I have a choice between filing a NIW and filing an Outstanding Professor/Researcher petition, which petition should I choose? 

A: The NIW petition can be filed either by an alien, by his/her employer, or by anyone acting as a representative for the alien. 

If you meet both criteria of NIW and Outstanding Professor/Researcher petition, generally we recommend that you file for a NIW petition if you do not want to bind you to any particular employer and which you may file on your own behalf. 

An Outstanding Professor/Researcher petition, however, requires a job offer from an employer. In addition, a change of employer while your petition is pending may terminate your Outstanding Professor/Researcher petition. Your particular situation may differ depending on your specific facts and circumstances. 

Q: What type of job offer is required? What if I change jobs while my NIW petition is pending? 

A: Technically, no job offer is required for a NIW petition. For this reason, it is possible for intending immigrants to self-petition. The way the statute is drafted, it is the job offer that is waived. Because the job offer is waived, the individual Labor Certification requirement is also waived. Realistically, however, a person seeking an NIW must offer persuasive evidence that he or she will be engaged in work that will benefit the national interest of the United States. The easiest way to do this is with a specific job offer, which clearly describes the work that will be done.

If you change jobs while your NIW petition is pending, it will have no effect upon the status of your case. The NIW can be self-petitioned and does not require a job offer. Therefore, you may change your employment and it will have no effect on your case, as long as you stay within your field of expertise. 

Q. I am full-time employed by a company. I like to file an immigration petition. What kind of document should my company provide? Also, if I have a Labor Certification application pending, may I also apply for a NIW? 

A: Your company should provide an employment offer letter which indicates your position type, job title, and compensation rate. Generally, if your company has less than 100 employee total, an earning statement of the company may also required.

If you have a Labor Certification application pending, you may also apply for a NIW. A Labor Certification process is done by the U.S. Department of Labor, whereas the USCIS handles the NIW petitions. If your Labor Certification is ultimately denied, then you still have a chance of getting an NIW approved. Either way, you need to petition for an adjustment of status of Form I-1485.

Q: If I have been denied a Labor Certification, may I still petition for a NIW? 

A: Yes, assuming you would otherwise qualify for a NIW. The standards for a NIW petition and a Labor Certification are very different. A Labor Certification is based on a lack of available U.S. workers with minimum qualifications for the particular job. By contrast, a NIW is based on proving that the alien's work is in U.S. national interest and his/her accomplishments have been exceptional which places the alien in the priority worker classification, bypassing the need for a Labor Certification. 

Q. What kind of degree is required to file for National Interest Waiver? Will a person with only a B.S. degree qualify?

A: The law requires that the alien has 

1) a U.S. advanced degree or an equivalent foreign degree, or 

2) an official academic record showing that the alien has a U.S. baccalaureate degree or an equivalent foreign degree and letters from current or former employers showing that the alien has at least 5 years of progressive post-baccalaureate experience in the specialty.

Q: Does an applicant need to receive his PhD and a job offer in order to apply for PR (Permanent Residence)? Can I file both an EB1 Extraordinary Ability and a NIW petition at the same time? 

A: You do not need to receive a PhD or a job offer in order to apply for U.S. Permanent Residence, and you can apply under either EB2 National Interest Waiver or EB1 Extraordinary Ability, even while you are still in a degree program. There are many successful cases of PhD students obtaining their Green Cards in the NIW category. 

You can file both an EB1 Extraordinary Ability and a NIW petition at the same time. Many of our customers choose to file both petitions simultaneously. Often, one petition will be approved earlier than the other will. In addition, if one petition is denied for some reason, there is still a chance that the other petition may be approved. 

Q: I am a PhD candidate, can I apply for U.S. Green Card under the National Interest Waiver? How many publications are sufficient to meet the NIW requirements? 

A: For the National Interest Waiver petition, the law only demands an advanced degree or bachelor's degree plus five years of work experience as the basic qualification. The important part is to show your work benefits this country. Since the law does not exclude PhD candidates, certainly such candidates can apply as long as he or she meets the requirements. 

There is no specific minimum publication requirement for a NIW petition; rather, it is determined by USCIS on a case-by-case basis.

Q: What is the advantage of applying for NIW over EB1 Outstanding Researcher or Professor? If I am not a member of any professional association or society in my field, may I still apply for a NIW? 

A: The biggest advantage is that applying under NIW does not require a permanent job offer and employer's sponsorship, whereas applying under EB1 Outstanding Researcher or Professor requires both a permanent job offer and employer's sponsorship.

If you are not a member of any professional association or society in your field, you still  can apply for a NIW. There is no specific requirement that you must be a member of any professional association, organization, or society in order to apply or obtain approval of a NIW petition, although in many instances such memberships would help improve chances of approval.

Q: I would like to file a NIW case, but I plan to move in three months to a different state. What will happen to my petition if I move? Also, can I apply for Green Card under more than one category in order to increase my chance, for example: NIW and traditional Labor Certification?

A: After your moving, your petition will remain active and your move will have no effect. In fact, you are eligible to file a new NIW case in that jurisdiction if you move to a state that has a different USCIS Service Center than the one where you previously filed, to increase your chances of approval.

Yes, you can apply for Green Card under more than one category in order to increase your chance. The law does not forbid multiple applications under different categories.

Q: What if I lose my job while my NIW petition is pending? If my application under NIW is rejected, can I apply again? 

A: If you lose your job while the NIW petition is pending, your NIW petition may be approved. If it is your self-petition and you find another job later in the same field, your Form I-485 application of Adjustment of Status may be approved also, and your status should be safe.

If your application under NIW is rejected, you can apply it again. Unlike the Labor Certification process where a rejection will result in a mandatory delay of six months, an NIW application can be filed immediately after an unfavorable decision.

Q: My application for PR (I-140) under NIW is pending while my practical training period is almost over. Do I still need either work authorization or H-1 visa in light of my PR application?

A: Yes. Your application for PR is irrelevant to your current non-immigrant visa status, and you need to maintain your legal status all the time.

Q: I am thinking of applying under "national interest waiver", but my employer is applying for Labor Certification for me at this time. Can I still file NIW application?

A: Yes. USCIS is not opposed to concurrent filing of applications for immigration.

Q: I was approved of I-140 under the third preference (EB-3) a few years ago, and I still have at least two years' immigration visa waiting for adjustment of status. If now I apply under NIW and obtain approval, can I use my priority date of EB-3 for adjustment based on my EB-2 approval? If I can do so, I do not need to wait any longer to adjust status.

A: Yes, you can. You are allowed to retain the earlier priority date for application filed in EB-1, EB-2, or EB-3 and apply the priority date for any subsequent application under EB-1, EB-2, or EB-3.

Q: I am considering applying under an EB-1 classification. May I also apply for an NIW at the same time? What are the advantages of NIW in comparison with Labor Certification? 

A: You can also apply for an NIW after an EB-1 petition, or at the same time. You are not bound by only one immigrant petition of Form I-140. You may petition under more than one category simultaneously. This increases your odds of getting an approval, since it is impossible to predict whether the USCIS will approve any given case. 

The Second Preference category includes NIW and some Labor Certification cases. The Labor Certification may take longer time. In comparison with Labor Certification, NIW as well as first preference (Extraordinary Ability and Outstanding Researchers and Professors) still remain as the viable alternatives and short cuts. They will always have the advantage over Labor Certification with or without the backlog.

Q: I heard that there is a backlog on 2nd preference in employment-based immigration for Chinese nationals, is it true? do I need to apply NIW now or wait?

A: The U.S. State Department notifies the public the availability of the immigration visas each month, it does so based on its prediction of how many immigrant visas available for each country. When the State Department believes a country has been "over-booked", that is there are more applications filed than the country's quota allows, it will stop processing application by issuing an arbitrary cut-off date. It allows the State Department to "clean up" the existing backlog through re-allocating left-over visas from different categories. Once the backlog is eliminated or the whole picture is clear as to when it will be eliminated, the cut-off date will move forward.

Please note the cut-off date does not correlate to our calendar. In 1993, the second preference moved backward eighteen months from current in response to Chinese Students Protection Act, which gave over sixty thousand visas to Chinese nationals. Only after around six months, the cut-off date moved to current again in one jump. The same thing may happen again.

No matter whether there is a backlog, it is always a good idea to apply now, not wait. In light of the existing backlog, it only makes more sense to apply now than waiting, since it is a 'first come first get' case.

Q: What about the issue of prevailing wage?

A: Since the U.S. Department of Labor is not involved, "prevailing wage" is not an issue. Obviously, if the salary offered is high, then the overall package will look better. Also, if the salary offered is very low, the applicant will have to explain why he or she is earning substantially less than his or her peers. If the answer is that the applicant is engaged in research at an institution where similarly employed researchers are paid similar salaries, then this should not be a problem. 

Also, if the applicant is working for a nonprofit institution, this may explain a lower salary. The USCIS will expect a person working for a for-profit entity to earn a salary that is equal to or higher than that paid to similarly qualified professionals working for similar companies.

Q: In case the initial application for PR has failed, is there a negative impact on the applicant's status and later attempt to apply for Green Card under NIW? Also, my friend has the same credentials as me and his NIW petition has recently been approved. Will my NIW petition also be approved? 

A: In case the initial NIW application has failed, there is no negative impact on the applicant's status and later attempt to apply for Green Card under NIW. The law neither forbids nor discourages concurrent or repeated applications. One time failure has no impact on later application.

You also need to know that each case is different, and although your credentials may be identical to someone else, your case may result in a different outcome. We provides a free evaluation where we can review your resume and give you our evaluation on your particular case. 

Q: What are the reasonable rate of attorney fees?

A: Based on survey, the average attorney fee throughout the United States for permanent residence application from document preparation until you got the Green Card is about between $5,000 to $10,000, in which the application fees to USCIS are not even included. 

Usually, there is no money-back guarantee offered, and no lawyer can and should guarantee the success of the petition.

Q: I heard some attorneys could generate evidences for you. Some attorneys have internal relations with USCIS so their claim will accelerate your application, is it true?

A: No, that is not true. We believe the honesty and justice.

Q: Is it possible to file two petitions such as an EB-1 and NIW at the same time? and how do I submit a document that is in a language other than English?

A: It is possible to file two petitions such as an EB-1 and NIW at the same time. Some of our customers file two I-140 petitions simultaneously. There is nothing stated in the law that prohibits multiple filings. Multiple filings increase your chances for approval. 

Any foreign language document must be accompanied by a English translation which the translator has certified as complete and correct, and by the translator’s certification that he or she is competent to translate from the foreign language into English.

Q: If I do not have any published articles in journals within my field, may I still apply for a NIW? Do I need to submit the original copy of a document?

A: If you do not have any published articles in journals within your field, your can still apply for a NIW. There is no specific requirement that you need to have published articles in order to apply or obtain approval of a NIW petition, although in many instances publications would help improve chances of approval.

Generally, you may submit a photocopy of a document to USCIS. But you should be prepared to present the original copy of the document to an USCIS official at any time later.

Q: I had a PhD in physics and a MS degree in computer science. I used my MS in computer science to find a job here. According to PhD in physics, the prevailing wage in my area is much higher than my current annual income of the job. Will my salary affect my NIW application to the Green Card?

A: It depends on how you file your petition and which category your are going through. If you are applying for a Labor Certification, you may run into trouble, if you can not meet the prevailing wage requirement. But for NIW, the prevailing wage should not be a problem, because the U.S. Department of Labor is not involved.

Q: My major was Economics. After I finished my Ph.D. in Economics, I went to computer science and got a M.S. degree. Will this affect my application for the Green Card?

A: It depends on how you organize your evidences. If you are currently working in a different field from the field where you got your highest degree, this kind of problem can generally be remedied by way of organizing and presenting your evidences.

Q. How do I know my application has been accepted by USCIS?

A: Once your application is accepted by USCIS, you will receive a receipt from USCIS informing you the acceptance and also informing you the duration of time for processing. Any petition that is not signed or is not accompanied by the correct fee will be rejected with a notice that it is deficient.

You may correct the deficiency and resubmit the petition. However, a petition is not considered properly filed until accepted by the USCIS. A priority date will not be assigned until the petition is properly filed.

Q. How long does it take for the USCIS to processing the NIW I-140 application?

A: It usually takes three to six months for USCIS to process your I-140 petition, but some petitions may take longer for adjudication. The result may be petition approval, or petition denial, or Requests For Evidence (RFE). If you are required to provide more evidence, it may take another one to four months after you submitted the required information.

Q: What is a "Request for Evidence"? 

A: Sometimes, the USCIS is not convinced that the alien petitioning under a NIW category has met the burden to prove that an applicant qualifies for the NIW category. In such cases, USCIS will typically submit a "Request for Additional Evidence" or "Request for Evidence (RFE)" seeking certain forms of evidence that the USCIS finds lacking. An applicant should take great care to present a strong case, so that it may be approved without a Request For Evidence. Nevertheless, there is no way to predict how a USCIS officer reviewing a particular case will respond, and sometimes even the strongest of cases receive a "Request for Evidence".

It is critical to appropriately and proficiently reply the USCIS issued Request for Evidence, incorrect response of the RFE will directly result in your National Interest Waiver petition rejection. To help you replying the Request for Evidence, and eventually turn the RFE into your Green Card, we provide a "Complete Do-It-Yourself Package for RFE of NIW Ability (http://www.greencardapply.com/rfe.htm)". 

Q. How to apply for Form I-485 Adjustment of Status after Form I-140 approval?

A: Application Form I-485, application for adjustment of status, is the document you are required to file after your application for immigration based on employment is approved. This form, when filed, must be accompanied by items such as photos, letter of employment, affidavit of support, physical examination record, etc. To help your Form I-485 application, we provide a "Complete Do-It-Yourself Package for Form I-485 Application".

With the change of immigration regulation, rules on adjustment of status become much more restricted. You must provide visa records to establish your and family members' continuous lawful status since you entered the U.S. This can be a serious problem for those people whose status expired prior to their application for immigration was approved. It generally takes more than twelve months for USCIS to process your Form I-485 adjustment of status application if you are not waiting for a visa quota.

Q. After my NIW is approved, do I need to remain working in the same field as indicated in my petition? Also, is there any penalty if somebody intentionally provide false evidence?

A: After your NIW is approved, you need to continue working in the field specified in the NIW petition. If you venture into another area, the USCIS may deny your Adjustment of Status (Form I-485) or even revoke permanent residency after an Adjustment of Status (I-485) is granted. 

If you knowingly and willfully falsify or conceal a material fact or submit a false document, you will be denied the benefit you are filing for, and may be denied any other immigration benefits. In addition, you will face severe penalties provided by law, and may be subject to criminal prosecution.

Q. Can I change employers before my Green Card, if my I-140 is approved on the grounds of a national interest waiver?

A: It is ideal if you keep your old job, or stay in the field if you decide to change job. If you are no longer employed, you may have problem with USCIS. 

If the basis of granting the NIW is the work done while being employed by a specific employer, then the alien worker should intend to continue to work for the employer. It may be possible in some cases to change employers provided the worker's job duties and responsibilities will be similar to those while employed with the previous employer and therefore, it is still in the national interest.

According to USCIS regulation, there shall be no interview for employment based case. If you are unemployed, you should be prepared to explain the circumstances for the unemployment, for example, boss' research fund has run out. Generally, it should not be a problem since NIW does not require a job offer.

Q. If my NIW petition is approved, when may I file a petition for Adjustment of Status (Form I-485) or an immigrant visa? How to seek or to continue employment after the I-485 application?

A: You may file a Form I-485 application for Adjustment of Status as soon as possible, or file Form I-140 and Form I-485 concurrently. This applies regardless of your country of origin.

To seek or to continue employment after they file the I-485, you need either a work authorization card or EAD (Employment Authorization Document) by filing application form I-765; or you may simply ask your employer to apply for an H-1B status for you. The EAD is much easier to obtain since you are entitled to employment while your I-485 is pending, whereas H-1B requires much more work and may encounter problems such as prevailing wage. After the I-485 filing, your status is legal, which is called" I-485 pending".

Q. I am a Ph.D. candidate in computer science, and in the final step to file my NIW I-140 for self-petition. Recently I got a job offer as a software engineer in another city. The job is not exactly in the same field as my research field for the Ph.D., which my petition is based on, but they are both in computer field. I want to know if there will be any trouble for me in this situation?

A: It all depends on how you set accents in your petition. You may need to define your research area, so that it will include both your current research and future job.

Q. What does consular processing mean? I received my I-485 NIW approval notice, and it says my approved case has been sent to NVC (National Visa Center) for consular processing. I reside in US and I am from India.

A: Consular Process (CP) means process of getting Green Card by traveling to a US consulate abroad, as opposed to adjustment of status in the US. If your I-140 approved for CP, you can still do AOS (Adjustment Of Status) without any problems if you are in the US.

Q. I want to know  how to file an amendment for an existing I-140 NIW application, to increase the salary and add more documents? My original application was still pending. During this time the above information has changed.

A: You do not need to file an amendment at this time. As for salary and additional material, you may keep this information for possible RFE.

Q. I self-petitioned my I-140 NIW case, and replied a RFE letter later. Now when I check the USCIS automated voice machine, it says "written decision sent on...". Does it mean that my case was denied? The following is my background:

(1) Ph.D in electrical engineering from US University
(2) More than 12 papers
(3) About 24 citation
(4) Two patents.
(5) Now working in a biotechnology company

A: Generally, "written decision sent on ..." means your case has been denied. With your background, you can try EB1-EA or EB1-OR petition later. Remember that your cover letter and document presentation is in fact more important than your credentials themselves for these petitions.

Q: I am in J-1 status and subject to the two-year home country residency requirement. May I apply for a NIW? 

A: Yes. However, you need to either obtain a J-1 waiver or satisfy the two-year home residency requirement before you may file Form I-485 to adjust your status to U.S. permanent resident. 

Q: I am currently in J-1 status and subject to the two-year home country residence requirement. If I apply for a NIW and get it approved, is my J-1 home country requirement waived? 

A: No, a J-1 waiver and a NIW are two different things. A J-1 waiver is an application to waive the two-year home country residency requirement. A NIW is an immigration petition. Even if your NIW is approved, you are still subject to the two-year requirement. You need to either obtain a J-1 waiver or satisfy it before you may adjust your status to a permanent resident. 

Q. I am in J-1 visa, and I just filed I-140 NIW petition to USCIS. If it is approved, can I file I-485 with J-1 visa also? Since I-485 application takes long time, I will probably be able to get J-1 waiver by this time.

A: First, you have to get the approval of the I-140 NIW petition. Then you can go ahead to work on the I-485. Let's assume that you have had the approval of I-140 NIW. Now you have to get the J-1 waiver before you can file the I-485. So you can not file I-485 application first, and wait for the approval of J-1 waiver later.

Q. Can I carry over I-140 approval from one company to another i.e. I don't have to file new I-140 if change job under I-140. Also, can I apply for Consulate Processing (CP) if my I-140 gets approved but EB-2 priority dates are not current.

A: You can change companies if you are the petitioner i.e., your company does not support your NIW case. You can apply for CP/AOS but in either case you need to prove that you will not become a public charge i.e., you have a job. Also you need to stick to the same field in which your NIW is approved until you finish the Green Card application process. Also, you cannot apply for CP/AOS until your priority date is current.

Q. My NIW application was approved. However, a RFE was issued to me from my simultaneous EB1-EA petition. What should I do? and is there any advantage of EB1-EA over NIW in this case? 

A: Both the EB1-EA and NIW waive the LC (Labor Certification) requirement and enable you to change jobs during the process as long as your work continues to be in the same or similar area. The main difference is the categories EB1 vs EB2. This becomes important from an immigrant visa number availability perspective. Usually, EB1 has little or no backlog whereas EB2 backlogs can have a substantial backlog at times. Of course, this also depends on the country to which your visa will be charged.

If the priority date is current for EB-2,  do not bother with the RFE for the EB1 petition. There is no special treatment for EB-1 vs. EB-2 for the rest of the Green Card process.

Q. I am an IT software development manager for a major telecommunication company. I do not have a 5 years of experience as a manager. I do have a masters degree from US. Do I qualify for EB1-EA or NIW? 

A: Based on your information, you may qualify EB1, but it may be difficult for your case to be approved as EB1. In most cases, USCIS will look for demonstrations of cutting edge research, several published papers, and other significant accomplishments for EB1 applications. Your job and functional category seems not truly in EB1 Extraordinary Ability. But everything depends on how you present your case, and you may qualify for NIW also.

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