
The National Interest Waiver (NIW) petition is a popular pathway to obtaining a green card for professionals whose work benefits the United States. However, an approved NIW (Form I-140) does not automatically grant you the right to work in the U.S. Understanding the steps involved and how they impact your work authorization is crucial for navigating the process.
The Two-Step Green Card Process
Obtaining a green card involves two distinct stages:
Step 1: Approval of the NIW Petition (Form I-140)
- An approved I-140 confirms that you meet the eligibility requirements for a green card under the NIW category.
- However, the approval of the I-140 does not grant work authorization.
Step 2: Filing the Green Card Application (Form I-485 or Immigrant Visa)
- Once your priority date becomes current (as per the Visa Bulletin), you can move to the second step:
- File Form I-485: If you are already in the U.S., you can adjust your status to permanent resident.
- Apply for an Immigrant Visa: If you are outside the U.S., you can process your green card application through a U.S. consulate in your home country.
Work Authorization Before Step 2
If your NIW petition is approved, but you haven’t filed Form I-485 or obtained an immigrant visa, you cannot work in the U.S. based on the I-140 alone. To continue working, you must maintain a valid non-immigrant visa status such as:
- H-1B Visa: Specialty occupation visa.
- O-1 Visa: Extraordinary ability visa.
- E-2 Visa: Investor visa.
Without an active non-immigrant visa, you must wait until you reach Step 2 of the green card process and receive employment authorization.
Work Authorization During Step 2
Once your priority date is current, you can file Form I-485 to adjust your status. At this stage, you are eligible to apply for an Employment Authorization Document (EAD).
Benefits of the EAD
- Work Flexibility: The EAD allows you to work for any employer in the U.S. while your Form I-485 is being processed.
- Processing Time: The EAD is usually approved within a few months of filing Form I-485.
Until your EAD is approved, you must maintain your existing work visa to remain employed legally in the U.S.
Key Points to Remember
- I-140 Approval Alone Doesn’t Grant Work Authorization: You must maintain a valid non-immigrant visa or proceed to Step 2 to apply for an EAD.
- Filing Form I-485 Enables Work Authorization: Once filed, you can apply for an EAD, which allows you to work while waiting for your green card.
- Plan Ahead: Ensure your non-immigrant visa status remains valid until your EAD is approved.
While the approval of your NIW petition is an essential step in the green card process, it doesn’t provide immediate work authorization. To work legally in the U.S., you must either maintain a valid non-immigrant visa or file Form I-485 and obtain an EAD.
At Scott Legal, P.C., we specialize in green card applications and can help you navigate the complexities of the NIW process. Contact us today to schedule a consultation or explore our free resources to learn more.
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