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What is the process for applying for a National Interest Waiver? How long does it take to obtain a green card through the NIW category?

By February 25, 2021May 20th, 2021Immigration, National Interest Waiver
Image courtesy of WikiCommons, labeled for reuse, https://upload.wikimedia.org/wikipedia/commons/9/91/Southern_Arkansas_University_Biology_student_with_microscope.jpg

The National Interest Waiver (NIW) is an employment based green card category that permits self-petitioning. The waiver part of the name is based on the fact that this green card is granted based on a waiver of the job offer and the labor certification (PERM) process. The national interest part of the name is based on the requirement that the waiver can only be granted if it is in the national interest of the United States. Changes in NIW law have made NIW petitions more available to entrepreneurs and other categories.

The NIW falls under the EB-2 green card category, which means that any applicant must have an advanced degree (Master’s or higher) or equivalent (a baccalaureate or foreign equivalent degree plus 5 years of post-baccalaureate, progressive work experience in the field) or be able to demonstrate exceptional ability in the sciences, arts or business. Once these threshold requirements are met, there are three additional prongs that must be satisfied to demonstrate that you qualify for the National Interest Waiver:

  1. You must show that your proposed endeavor has both substantial merit and national importance;
  2. You must show that you are well-positioned to advance the proposed endeavor; and
  3. There must be a showing that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

What is the application process?

The first step in the National Interest Waiver process involves filing an I-140 Petition with U.S. Citizenship & Immigration Services along with supporting documentation showing you qualify for the EB-2 category and the NIW. If the applicant is in the U.S. in valid status and an immigrant visa is available, an I-485 (Adjustment of Status) application can be filed concurrently with the I-140 Petition, along with applications for work (I-765) and travel (I-131) authorization. The applicant may also choose to file the green card application through Consular Processing, which means the I-140 approval would be sent to the National Visa Center (NVC) and the green card application would be processed at a U.S. Consulate abroad.

How long does it take to get a green card?

As of the time of this writing (February 11, 2021), there is no option to request Premium Processing for I-140s in the NIW category, although this may become available in the future. As of now, the lack of the Premium Processing option means that it may take several months to receive a response from USCIS on the I-140 Petition. USCIS may approve, deny or issue a Request for Evidence or Notice of Intent to Deny on the I-140 Petition.

If the petition is approved and an I-485 was concurrently filed, then the next step is for the applicant to attend the I-485 green card interview with USCIS. The timing for getting this appointment will depend on the processing times at the local USCIS field office where the applicant resides. Most field offices have processing times of several months.

If the applicant chooses to pursue the green card through Consular Processing, then the I-140 approval would be sent to the National Visa Center (NVC). This process can take several weeks. Once NVC confirms receipt of the approval, the applicant would pay a visa fee, complete an online form DS260 and submit supporting documents to NVC. NVC reviews the documents (another process that can take several weeks) and will then reach out to the applicant if anything further is needed. Once all documents are reviewed, the case will be sent to a U.S. Consulate abroad and an interview will be scheduled. Prior to COVID-19, interviews were usually scheduled within 30-60 days, however the impact of the global pandemic has caused significant delays in Consular processing, After the applicant attends the interview, they will be given an immigrant visa and must enter the U.S. within 6 months and their green card will be mailed to them at their new U.S. address.

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