F-1 visa holders pursuing higher education in the U.S. may wonder whether they can apply for the EB-2 National Interest Waiver (NIW). The answer is technically yes—an F-1 visa holder can apply for an NIW petition. However, there are key considerations to be aware of before moving forward with the application.
Meeting the EB-2 NIW Eligibility Requirements
Before applying for an NIW, you must first meet the basic EB-2 threshold requirement. Specifically, you must have already obtained a master’s degree or higher at the time of application. Evidence such as a diploma or official transcript will be required to demonstrate that you meet this educational qualification. You can also quickly if you have a BA plus 5 years of progressive work experience but the work experience must be obtained after the BA. Finally, you may qualify for the threshold requirement if you have exceptional ability.
For Ph.D. students, an application may be possible if they have already earned a master’s degree. However, the ability to qualify will depend on other factors, such as experience and contributions to their field.
The three requirements to qualify for an NIW all relate to your proposed endeavor. As such, you must define why you are coning to the U.S. Here are the requirements:
- Your proposed endeavor must have substantial merit and be of national importance
- You must be well positioned to advance the endeavor
- On balance the government must decide to waive the labor certification requirements
Demonstrating That You Are Well-Positioned to Advance Your Endeavor
One of the key requirements of the NIW is proving that you are well-positioned to advance your field of expertise in the U.S. This can be particularly challenging for students with limited work experience. In such cases, applicants must develop a strong strategy to present compelling evidence, which could include:
- Published research or academic contributions.
- Conference presentations or industry recognition.
- Recommendations from experts in the field supporting the applicant’s qualifications and impact.
- Evidence of innovation or entrepreneurship in their field.
This criterion also looks at track record and this can be difficult if someone just graduated. Since the NIW is focused on future contributions rather than just past achievements, applicants should carefully build a case that demonstrates their ability to make significant contributions to their industry or area of expertise.
The Impact of the NIW on Non-Immigrant Intent
A major concern for F-1 visa holders considering an NIW application is the non-immigrant intent requirement. The NIW is an immigrant petition, which means that filing the Form I-140 signals an intention to remain in the U.S. permanently. This can create complications for F-1 visa holders, particularly when applying for visa renewals or attending visa interviews at a U.S. consulate.
Once an I-140 petition is filed, consular officers may scrutinize an F-1 visa renewal more closely, and there is an increased risk that the renewal application could be denied on the basis of immigrant intent. Each case is unique, so it is critical to evaluate the potential risks before filing an NIW petition while on an F-1 visa.
Consultation with an Immigration Attorney
Given the complexities involved in filing an NIW while on an F-1 visa, consulting with an immigration attorney is strongly recommended. Each applicant’s situation is different, and an attorney can help assess risks, develop a strategy, and determine the best course of action.
If you are considering applying for an NIW while on an F-1 visa, Scott Legal, P.C. can help. We offer free resources to help you navigate your immigration options and ensure you make informed decisions. But we highly recommend you schedule a consultation so we can discuss your case specifically.
