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Old 01-26-2010, 12:25 PM
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deecha is on a distinguished road
Default Eb2 - niw

Hi Gurus,

I was wondering if anyone on this site has ever filed an EB2-NIW I-140 petition ? And if so, what fields have you filed it in ? Do you necessarily need a masters degree or would 10+ years of experience in systems development qualify ?

I was also wondering if working in the health-care technology field, to create systems to diagnose and monitor cardiovascular systems to detect/prevent heart diseases would be something that could considered in the "national interest" ? If there is a job offer already extended to someone to work on such projects, would you still need a labor certification ?

Thank you in advance for taking the time out to read this and reply.
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Old 04-11-2012, 07:42 PM
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Default National Interest Waiver (NIW)

Hi I found an article here which can answer your question. There are also
many reference letter samples there if you want to try it yourself. Best,

1. Introduction of National Interest Waiver (NIW):

Generally, application of second preference of employment-based immigrant visa, unlike first preference, requires a specific job offer and labor certification. However, a foreign person may seek a waiver of the offer of employment by establishing that his/her admission to permanent residence would be in the “national interest “. This means that petitions for National Interest Waiver (NIW) are more difficult than petitions for regular EB-2 because of the additional requirements. The procedure is to file Form I-140 together with evidence to establish that the foreign person’s admission to the United States for permanent residence would be in the national interest. Chen Immigration Law Associates, P.A. has developed winning strategies for petitions of National Interest Waiver (NIW), which enable us to make guarantee about National Interest Waiver (NIW) cases we take. In addition, physicians who agree to work for at least five years in areas with a shortage of health care professionals are entitled to National Interest Waiver (NIW) if a federal or state agency attests that their work will be in the public interest.

2. Still Need to be Qualified for EB-2 Category:

Chen Immigration Law Associates, P.A. always reminds our clients not to forget that a successful national interest argument does not establish eligibility for second preference classification. The National Interest Waiver (NIW) waives a labor certification 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 (NIW) be considered.

Please click here to see the requirements of EB-2, summarized by Chen Immigration Law Associates, P.A.

EB-2 Qualifications …. More >>

3. What is “National Interest “?

The Immigration Act of 1990 states that the standards for a National Interest Waiver under the EB-2 category are “significantly above that necessary to prove prospective national benefit“.

Other than that, the law does not indicate specifically what counts for National Interest. USCIS believes it appropriate to leave the application of this test as flexible as possible. The burden of proof will rest with the foreign national to establish that exemption from or waiver of the job offer will be in the national interest. Each case will be judged on its own merits.

Chen Immigration Law Associates, P.A. has found that the range of cases and decisions indicates that the USCIS requires a fairly direct benefit to the community-at-large before it will agree that a job is in the national interest.

Chen Immigration Law Associates, P.A. found that the USCIS Service Centers had ruled national interest in an array of occupations, including: resident doctor focusing on the research of obese problems; computer programmer; anthropology professor (specializing in the cocaine-producing region of Peru, knowledge of which is necessary to U.S. drug interdiction efforts); a business consultant; a civil engineer.

4. Trends:

After reviewing a substantial amount of case law from AAO (Administrative Appeal Office) decisions, Chen Immigration Law Associates, P.A. has found guidance of some trends:

A. Higher Approval Rate for Science Field: Chen Immigration Law Associates, P.A. found a higher approval rate scientific occupations and a lower approval rate for social science applications and varying results with business applications and those for aliens in the arts.

Attorneys in Chen Immigration Law Associates, P.A. concluded that it is because past accomplishments are easier to establish in the fields of science.

B. Recommendation letters from Independent Witnesses Working in the same Field Help Substantially: Chen Immigration Law Associates, P.A. has found that, letters from independent experts will greatly increase the chances of success in a National Interest Waiver case.

C. Showing Impact is the Key to an National Interest Waiver (NIW) Approval: Chen Immigration Law Associates, P.A. has found that the immigration officer put significant emphasis on the impact of the applicant’s work on his/her endeavor in order to decide whether a labor certification should be waived.

5. NYSDOT Decision for a National Interest Waiver (NIW) case:

In 1998, the legacy INS designated its first precedent decision discussing the standards governing National Interest Waiver (NIW) requests in In re New York State Department of Transportation (NYSDOT). The decision established stricter standards for obtaining NIWs than those applicable in the past. The AAO (Administrative Appeal Office) held that three factors must be considered when evaluating a request for a National Interest Waiver (NIW).

Area of Substantial Intrinsic Merit

Proposed Benefit of National Scope

Significant Benefit in the “National Interest“ Field

Click here to read the detailed analysis of this important case by Chen Immigration Law Associates, P.A.

What are the three factors to evaluate a National Interest Waiver (NIW) case? (NYSDOT Case) …. More >>

6. Supporting Evidence:

National Interest Waiver (NIW) petitioners need to satisfy the burden of proof by submitting substantial supporting evidence, including but not limited to:

A. Past Contributions and Achievements which are supporting by evidence such as models/designs being implemented, publication records, citation records, patents being commercialized, judging peers’ work, service on editorial board or as a conference chair

B. Specific Description of Position to be Filled

C. Supporting Letters from Experts in the Field

Chen Immigration Law Associates, P.A. has found that the past contributions and achievements are the most important evidence in proving a National Interest Waiver (NIW) case. Generally, it is not difficult to argue that the activity of the foreign beneficiary is of intrinsic merits and the proposed benefit is national in scope. However, it is essential and more difficult to convince adjudicating officers that the past accomplishments and achievements of the foreign beneficiary are substantially above others in the same field that the waiver of a labor certification is justified.

Supporting Evidence for a National Interest Waiver (NIW) Case? …. More >>

7. Physicians Seeking National Interest Waiver (NIW)

Legislation enacted in 1999 makes it easier for certain foreign physicians seeking permanent residence in the second employment-based preference to qualify for National Interest Waiver (NIW). Under the 1999 legislation, the USCIS must grant an National Interest Waiver (NIW) if:

the physician agrees to work full time in a field designated by the Department of Health and Human Service (HHS) as a health professional shortage area or in a Veterans Administration (VA) hospital, and

a federal agency or a state department of public health has determined that the physician’s work is in the public interest.

Five-Year Aggregated Service: The physician, however, is not eligible for an immigrant visa or adjustment of status until such time as he or she has worked full time as a physician in a shortage area or VA hospital for an “aggregate“ of five years. Time in J-1 status cannot be counted towards the five-year period.

The USCIS rules clarify that the physician must agree to practice full-time in a HHS-designated Primary Medical Health Professional Shortage Area (HPSA) or a Mental Health Professional Shortage Area (HPSAs). Alternatively, a physician must serve at a Veterans Affairs health facility. The rules also specify that only physicians who will practice in the following fields of medicine are eligible for waivers under the 1999 law: family/general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry.

If you have any further questions regarding National Interest Waiver (NIW), please contact Chen Immigration Law Associates, P.A.. If you are interested in the services of National Interest Waiver (NIW) by Chen Immigration Law Associates, P.A., please refer to the processing flow of National Interest Waiver (NIW) petition.

8. EB2-NIW (National Interest Waiver) Reference Letter

Here we list a common template of recommendation letter in EB2 NIW (National Interest Waiver) application. However, in the premium NIW service at Chen Immigration Law Associates, P.A., our attorneys draft six to eight recommendation letters which are optimized based on clients’ credentials. Unlike most law firms which only provide templates and ask clients to draft their own recommendation letters or charge more for the service, we at Chen Immigration Law Associates draft all the reference letters specifically for client’s case. Drafting good recommendation letters requires profound understanding of the USCIS’s preference of the letters and a careful study of the applicant’s and the referrer’s work and research. We truly believe well-drafted recommendation letters are essential for successful petitions. Please note that the reference letter we included here is just an example. We do not suggest our clients to use these samples.

National Interest Waiver (NIW)
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