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Bypassing green card eligibility for foreign nationals

On Behalf of | Apr 13, 2022 | US Immigration Law

Being able to work in the United States under a green card visa is a complicated and time-consuming process, and one that can delay skilled foreign nationals from entering the country to provide indispensable services to industries in need of their specialized abilities.

Under current U.S. immigration law, for a foreign national to obtain a green card, they must have a sponsoring employer as well as proof of eligibility or a job offer.

One way to circumvent this job certification process is with the National Interest Waiver (NIW). To qualify, the applicant must meet certain criteria that establishes their unique skills and how these abilities are of vital importance to our national interest.

Unfortunately, qualifying for NIW status does not guarantee an applicant’s ability to later obtain a green card. For foreign nationals who are interested in understanding both their options and the process, it is helpful to have legal guidance in the Chicago area to determine if the NIW is a feasible path for obtaining permanent residency.

Eligibility requirements for the NIW

To be eligible for the NIW, a candidate must demonstrate exceptional ability in the arts, sciences, or business. Applicants must pass a three-pronged test:

  • They work in a field that has substantive and national importance.
  • They have the ability and skill to advance their proposed endeavor.
  • Their qualifications and contributions to this area or field benefit the United States and justify waiving the labor certification process, which will prioritize the waiver over preserving this job opportunity for U.S. workers.

Some of the criteria for demonstrating exceptional ability can include degrees, letters of recommendation, licenses to practice, awards or recognition of achievements, or membership in professional organizations.

Employment-based visa categories

The foreign national may obtain the NIW through two primary employment-based immigration visa categories:

  • Employment First Preference (E1), for priority workers and persons with extraordinary abilities, including those with specialized skills in the sciences, arts, education, business, or athletics, such as professors, researchers, multinational manager, or executives.
  • Employment Second Preference (E2), for professionals holding advanced degrees and individuals with exceptional abilities.

While the usual route for obtaining a visa requires the employer to sponsor the visa applicant, the NIW allows the foreign national to self-petition with evidence that the NIW exemption serves in the national interest.

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