Green Card and NIW by Eduard Chekmenev

Green Card Application: National Interest Waiver: EB-2 category

by Eduard Chekmenev

This guide to the Green Card Application covers some basics as well as provides some examples and links to valuable sources of information. I hope it will be really useful for some of you!

The major problem for most of international students who wants to stay in U.S. after graduating is getting a permanent resident status, which usually boost both income and career. USCIS (former INS), however, made it more difficult to obtain permanent resident status in past few years. National Interest Waiver (NIW), introduced in late 1990s is not an exception, but it still provides a great alternative for most of the researchers, especially those who work for Health Industry in U.S.

Unfortunately the guidance provided for Green Gard (GC) application by USCIS is not straightforward especially when it gets to the NIW application through employment.

There are 5 different categories for immigration based on employment, which have different priorities. For example, category EB-1 Priority workers has the greastest priority, but it is also the most difficult to prove. Nobel Prize winners may want to take this road easily. For the rest of us though it will be a challenging (but possible) task to prove.

A far easier way would be the category EB-2 Professionals with advanced degrees or persons with exceptional ability, which I use. It is not #1 priority, but significantly easier to prove and has all the benefits of EB-1 Priority workers category. The most important benefit is NIW, which allows waiving the labour certification that takes ~2 years to process. This article will, therefore, focus on EB-2 category with NIW.

Understaing the basis. The important issue is the qualification for EB-2 category:
The EB-2 classification includes: aliens who are "members of the professions holding advanced degrees or their equivalent" and aliens "who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States." Specifically it breaks down to the following categories:

* improving the U.S. economy;
* improving wages and working conditions of U.S. workers;
* improving education and training programs for U.S. children and under-qualified workers;
* improving health care;
* providing more affordable housing for young and/or older, poorer U.S. residents;
* improving the environment of the United States and making more productive use of natural resources; or
* a request from an interested U.S. government agency.

In order to be classified as having exceptional ability in the sciences, arts, or business, the individual must provide documentation of three of the following:
1. An official academic record showing the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;
2. Letters documenting at least ten years of full-time experience in the occupation being sought;
3. A license to practice the profession or certification for a particular profession or occupation;
4. Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;
5. Membership in professional associations;
6. Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

Three of the above can be easily proved by existing diplomas as well as by recommendation letters, which also need to appeal to waive the labor certification. This is why the recommendation letters are of great importance. Consequently, it takes a lot of effort and time. What is also important to understand is the basis for granting GC is not a category but rather National Importance of applicant work. Example of form I-140 is shown below.

What you get and when: deadlines. As it was mentioned above it NIW allows cutting down the time for GC approval. One of my co-workers received her GC approval in approximately 1 year. So, it is really fast compared to the cases when labour certification is not waived. What is also of great importance the possibility on concurrent filing for travel permits and working authorization (EAD) when filing for GC. In other words, the applicant(s) obtain the advantages of GC before its actual approval. Both EAD and travel documents are usually processed and mailed within 2 months. This is a great solution for couples, when the spouse of primary applicant has no EAD, since s/he can start working after 2 months from filing.

Recommendation letters. They should show:
1. Important of applicant past, current and future (in any) work and education. The focus on substantial (including potential) benefit(s) for the national economy, cultural, or educational interests or welfare of the United States is important.
2. They national and international recognition of aplicant work. It is relatively easy to show if the recommendation letters are signed by people across the U.S. as well as by foreign persons. A good recommendation letter(s) from the university back in home country would be a a plus here.
3. Emphasis of the importance of waiving the labour certification.
4. Exceptional abilities of the applicant. Most of us are pretty young by academic standards. So, future aspects of applicant importance for U.S. healthcare and economy can be made.

Minimum recommended number of recommendation letters is 6. I submitted 7 myself. The more the better in this case. It is also highly recommended that each recommendation letter would be augmented by CV. The typical successful procedure involve drafting the recommendation letter by applicant (do not assume that most of people would like to spend a few hours of drafting the letter unless they already have a draft for you), initial correction by lawyer, corrections by the signer, final corrections of lawyer, signing and mailing hard and electronic copies. The lawyer would need an electronic copy for drafting his own letter. In my experience, recommendation letters take ~60% of entire filing procedure. Provided below are examples of recommendation letters. Please, do not use them by just cutting and pasting because this is illegal. Moreover, USCIS does some verifications as well, which may affect the success of your application!

Recommendation letter: example #1

CV. Applicant also needs to provide CV, which should be accompaigned by copies of publications as well as the some evidence of participating in scientific meetings. A copy of an abstract would be a good evidence for conference participating along with the front page showing name, date and place of the conference.

Importance of lawyer. Lawyer is important for a few reasons: s/he receives the copy of all paperwork from USCIS (so, if something gets lost s/he would receive a copy!), s/he is drafting a letter for USCIS, which is a summary of recommendation letters and applicant CV. It is ~20 pages long and provides a readable axplanation for USCIS officials, why your case is important. 90% of the pay amount is essentially paid for lawyer's help with recommendation letter and his own letter. Lawyer service would cost from $2,000 to $6,000 for filing the base documents + additional amounts (few hundred dollars usually) for concurrent filing for temporary EAD and travel documents. Most importantly, however, good lawyers rephrase our scientific and very focused language to the language of INS officials, who may only have a high school diploma. This is very critical to make applicant's arguments understandable for people with completely different background.

INS forms. The following forms must be submitted (the fee amount changes every year. Those provided here are for summer 2004):
I-140, Immigrant Petition for Alien Worker - $190 per application.
I-485, Application to Register Permanent Residence or Adjust Status - $385 ($315 form fee + $70 biometric fee) per person.
G-325, Biographic Information - no fee, each person.

In addition to those if filing concurrently for EAD and travel documents:
I-131, Application for Travel Documents - $165 per person and
I-765, Application for Employment Authorization - $175 per person.

The fees add up very quickly as one sees assuming that there is also a charge of ~$200/person for medical exam. For example, for couple this would like as follows:
1x$190 + 2x$385 + 2x$200(medical exam) = $1,360.
Concurrent filing for travel documents and EAD would costs additionally
2x165 + 2x$175 = $680 amounting to a total of $2,040. There are also additional spending associated with taking good quality pictures ~$50-100/couple and we needed the immunization, which costed additional $100/couple. So, we arrive to a Grand total of $2,200+ per couple. Just be financially prepared for that!

Other documents except those prepared by lawyer. Those include the following:
1) Medical examination;
2) Records of legal presence in the U.S., i.e., copies of passport, visas, I-94, I-20, EAD, etc.
3) Copy of valid passport and SS card.
4) Birth and marriage certificates with translations if applicable. Must be notarized. Here is an example of the form for notarization of translated documents.
5) Copy of taxes for the past 3 years if applicable.
6) Copy of diploma of highest degree awarded, If in foreign language, needs at least translation and notarization. Also make copy of all documents certifying your awards and achievements.
7) Copies of all other documents that may help to approve your case.

Tips. Some of them I did not know when I filed, but they will be of use for you:
1) Start preparing your documents in advance and organize everything. By the time you get through there can be 200-300 pages of documents at the very least.
2) Do not send personal checks if you care about tim. If payment is send by money order, it may speed the things up by up to 1-2 weeks.
3) When sending your application, make the complete copy. You'll need it in the future.
4) For most russians the last names of husband and wife are different at least by one letter. INS can consider it as a different name too. To avoid this problem, write a separate statement why the last names are different.
5) If your passport was renewed recently with a stamp that says for use in the U.S. and only to travel back to home country, take a look at the date of expiration. It may be confusing for INS as well. Make a separate statement as well.

Links. Government resources:

1. USCIS Online Case Status Service
2. USCIS Forms and Fees

I also browsed the web a lot and found a lot of useful information from private sites including agencies:

3. Law Office of Diana L. Levy, National Interest Waiver
4. Terminology Immigration Portal
5. www.usvisanews.com
5. Immigration Without Labor Certification: When And Why To File An EB-1 Or NIW Petition by Cletus M. Weber

Last update September 21, 2004