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February 23 2023

Thoughts on Extraordinary Ability and National Interest Waivers

For employment-based immigrations, usually, one must have an employer who files a
Labor Certification with the Department of Labor (DOL) for the employer to prove worker
shortage. The EB-1 extraordinary ability and outstanding researcher as well as the EB-2
National Interest Waiver (NIW) classifications exempts the immigrant from the slow DOL
process, and EB-1s and NIW classifications are exempt from having an employer

NIWs are for exceptional people in the sciences; arts, or business. One must have an
advanced degree or be of “exceptional” ability. A USCIS precedent decision provides
one must show the foreign national’s proposed endeavor has both substantial merit and
national importance and the foreign national is well positioned to advance the proposed
endeavor and, on balance, it would be beneficial to the United States to waive the
requirements of a job offer and DOL labor certification.

EB-2 NIW petitions can now be expedited with a USCIS filing fee of $2,500. The
decision will be made within 45 days. EB-1 extraordinary ability petitions are also
eligible for expedited processing for $2,500, with a decision made within 15 days.
In the past, one could apply for EB-2 status (Form I-140) and concurrently adjustment of
status (except for people from India or China). The NIW route was a good strategy for
most, as an NIW is easier than proving EB-1 extraordinary ability. And whether one has
an EB-1 or EB-2 green card is not relevant – both are green cards – and provide
permanent resident status. But now the EB-2 quota for all is backlogged on the Visa
Bulletin and is not advancing (so far, the category cutoff date is still November 1, 2022
since October) and will take longer than an EB-1 application (except for people born in
China or India).

Having filed hundreds of applications for people of extraordinary and exceptional ability,
NIWs and for outstanding researchers, I have the following thoughts:
  • Having a Ph.D. helps, but it is not required by any means.
  • Having patents or patents pending is a plus as they show original work and
  • benefits to the economy.
  • A few endorsement letters are helpful, provided they do not just say the applicant
  • is great, but explain why the person is exceptional and the benefit of their work.
  • Quality is more important than quantity.
  • It is important to explain the applicant’s work history and accomplishments in a
  • way a non-expert can understand.
  • Publications by the applicant are important.
  • Being a reviewer of the work of others, such as a journal reviewer, is a plus.
  • University awards are usually irrelevant.
  • Working in a medical or scientific field is a plus.
  • Arguing a salary is high is a waste of time.
  • One can file both EB-1 and EB-2 petitions simultaneously – but we usually pick
  • one.
  • People filing petitions under the extraordinary ability or NIW category may
  • sponsor themselves; no U.S. employer is needed.

Each case is different especially with these applications, and our strategies are adjusted
based on the evidence, visa backlogs and individual factors.

Still, while slower than in the past, the NIW classification is, for those who qualify, an
excellent way to immigrate.