The EB-2 National Interest Waiver (NIW) visa is an advantageous route to U.S. permanent residency, especially for highly skilled professionals currently on H1-B visas. Unlike traditional employment-based green cards, the EB-2 NIW does not require employer sponsorship or labor certification.
Instead, it allows qualified individuals to self-petition, demonstrating that their expertise and work contribute to U.S. national interests. This pathway is particularly appealing to those with advanced degrees or exceptional abilities in fields such as science, technology, or healthcare, offering them more control over their immigration status and a streamlined process for obtaining a green card.
For those asking, “Can I apply for NIW 485 through my H1-B visa?” this blog provides a comprehensive guide, outlining the eligibility criteria, application process, benefits, and legal considerations for pursuing an EB-2 NIW.
Overview of EB-2 NIW Visa Application via H1-B
The EB-2 NIW category is designed for professionals whose work is in the “national interest” of the United States. This visa allows qualified applicants to self-petition for a green card, bypassing the traditional requirements of employer sponsorship and labor certification. For H1-B visa holders, this means more control over their immigration status and fewer barriers to permanent residency.
Many H1-B holders find themselves restricted by employer sponsorship, which ties their status to a specific job. In contrast, the EB-2 NIW category allows applicants to self-petition if they can prove that their work benefits the U.S. at a national level.
This option is particularly beneficial for those in fields such as science, technology, healthcare, and research, where their contributions can significantly impact society. So, if you’re wondering, “Can I apply for NIW 485 through my H1-B visa?” the EB-2 NIW could be a perfect fit, enabling a direct path to permanent residency.
An experienced immigration lawyer like Sweta Khandelwal can provide valuable guidance tailored to your specific circumstances, enhancing the chances of a successful application.
Eligibility Criteria for EB-2 NIW
To qualify for the EB-2 National Interest Waiver (NIW), applicants must meet specific eligibility criteria that fall under the broader EB-2 visa category. This visa is designed for foreign nationals who possess either an advanced degree or demonstrate exceptional ability in their field.
Below are the detailed criteria for eligibility.
Advanced Degree:
- Applicants must hold a U.S. master’s degree or a foreign equivalent, or
- A U.S. bachelor’s degree (or foreign equivalent) accompanied by at least five years of progressive post-baccalaureate work experience in their field.
Exceptional Ability:
Applicants must demonstrate expertise significantly above that ordinarily encountered in the sciences, arts, or business. To prove exceptional ability, they must present evidence meeting at least three of the following:
- Official academic records.
- Professional licenses or certifications.
- Letters from employers documenting at least ten years of full-time experience.
- Recognition through awards or honors.
- Membership in professional associations requiring outstanding achievements.
- Evidence of salary or remuneration indicating exceptional ability.
National Interest Waiver Specific Criteria
To qualify specifically for the NIW, applicants must satisfy additional requirements that demonstrate how their work benefits the national interest of the United States:
- Substantial Merit and National Importance:
The proposed endeavor must be of substantial merit and have national importance. This involves demonstrating how the work contributes positively to the U.S., whether in areas like technology, health, education, or other fields.
- Well-Positioned to Advance the Proposed Endeavor:
Applicants need to show they are well-positioned to advance their proposed work. This can include evidence of education, experience, and any relevant achievements that support their capability to execute their plans successfully.
- Beneficial to Waive Labor Certification:
It must be demonstrated that waiving the labor certification requirement (which typically requires a job offer and proof that no qualified U.S. workers are available) would benefit the U.S. This means presenting a compelling case that highlights why the applicant’s contributions are vital enough to bypass standard employment requirements.
Also Read: EB-2 EB-3 Visa: Trends & Predictions
Application Process for EB-2 NIW Visa
The application process for the EB-2 National Interest Waiver (NIW) visa involves several key steps, allowing qualified individuals to bypass the traditional labor certification process.
Here’s a structured overview of the application process:
- Determine Eligibility:
Ensure you meet the eligibility criteria for the EB-2 NIW, which includes having an advanced degree or demonstrating exceptional ability in your field, along with meeting the national interest waiver requirements.
- File Form I-140:
The first step is to submit Form I-140, known as the “Immigrant Petition for Alien Worker,” to the U.S. Citizenship and Immigration Services (USCIS). This form can be filed without a job offer or labor certification due to the NIW provision.
Along with Form I-140, include substantial evidence supporting your qualifications and the claim that your work benefits the U.S. national interest.
- Processing Times:
The processing time for Form I-140 can vary significantly, typically ranging from 10 to 26.5 months depending on the service center handling your case. Premium processing may be available for an additional fee, allowing for expedited review within 45 days.
- Adjustment of Status or Consular Processing:
If you are already in the U.S., you can apply for an adjustment of status using Form I-485 after your I-140 is approved. This process can take anywhere from several months to over two years.
If you are outside the U.S., you will go through consular processing at a U.S. embassy or consulate. You will need to schedule an appointment and present your visa application and supporting documents.
- Receive Green Card:
After approval of Form I-485 (or consular processing), you will receive your green card, granting you permanent resident status in the United States. The entire process from filing to receiving a green card can take several months to a few years depending on various factors.
Costs Involved
- The filing fee for Form I-140 is approximately $715, while Form I-485 costs around $1,440, plus a biometrics fee of $85 if applicable.
- Additional costs may include fees for medical exams and other associated forms if applying from abroad.
Simplify your application journey with professional support from immigration experts of the Law Offices of Sweta Khandelwal who can help demystify each step and required documentation.
Combining I-140 and I-485 Applications
The concurrent filing of Form I-140 (Immigrant Petition for Alien Worker) and Form I-485 (Application to Register Permanent Residence or Adjust Status) allows eligible applicants to submit both forms simultaneously, streamlining the green card application process. This method is beneficial for those who have a visa number immediately available and wish to expedite their adjustment of status.
Key Benefits of Concurrent Filing
- Faster Processing: By filing both applications together, the U.S. Citizenship and Immigration Services (USCIS) can begin background checks and processing on the I-485 while the I-140 is still pending, potentially reducing overall wait times.
- Work Authorization: Applicants can apply for an Employment Authorization Document (EAD) and Advance Parole (AP) simultaneously with the I-485, allowing them to work and travel while their applications are processed.
- Flexibility in Employment: Under the portability provisions of the American Competitiveness in the Twenty-first Century Act (AC21), applicants may change jobs after their I-485 has been pending for at least 180 days, provided the new job is in a “same or similar occupational classification” as specified in the original I-140 petition.
Eligibility for Concurrent Filing
Concurrent filing is permitted under specific conditions:
- A visa number must be immediately available at the time of filing.
- The applicant must be physically present in the United States.
- Certain categories, such as immediate relatives of U.S. citizens or most employment-based applicants, qualify for concurrent filing.
Recent Changes and Procedures
Recent guidance from USCIS has clarified that when both forms are filed concurrently, they will be adjudicated together. However, if either application requires a Request for Evidence (RFE), separate RFEs must be issued for each form due to legal considerations. This ensures that each application is evaluated independently while still benefiting from concurrent processing.
Important Considerations
- Priority Dates: Applicants must ensure their priority date is current according to the Visa Bulletin; otherwise, they cannot file concurrently.
- Separate RFEs: If an RFE is issued for the I-140 or I-485, they cannot be combined into one document but can be sent to the same attorney if both forms have a G-28 on file with the same representative.
Also Read: Permanent Work Visas/Employment-based Green Cards
Maintaining Legal Status Through H1-B
Maintaining legal status while in H-1B status is crucial for foreign workers in the U.S. This visa allows employers to hire foreign professionals in specialty occupations, typically requiring at least a bachelor’s degree. Understanding the rules and regulations governing H-1B status can help individuals navigate their employment and immigration options effectively.
Duration of H-1B Status
- Initial Duration: The H-1B visa is initially granted for up to three years.
- Extensions: It can be extended for a maximum of six years, with specific conditions allowing for further extensions if an immigrant petition (I-140) has been filed or if a labor certification has been pending for at least 365 days.
Employment Requirements
To maintain H-1B status, the following employment conditions must be met:
- Employment Tied to Sponsor: The individual must be employed by the sponsoring employer, as the H-1B visa is employer-specific. If employment ends, the individual must either leave the U.S. or apply for a change of status.
- Grace Period: There is a grace period of up to 60 days after employment termination during which the individual can remain in the U.S. to seek new employment or change their status.
- File an application for a change of nonimmigrant status;
- Apply adjustment of status;
- Apply to a “compelling circumstances” employment authorization document; or
- Be the beneficiary of a nonfrivolous petition to change employee
Change of Employer
If an H-1B worker wishes to change employers, the new employer must file a new Form I-129 petition on behalf of the worker. The worker can begin working for the new employer once the petition is filed, provided it is a non-frivolous application.
Options for Transitioning to Permanent Residency
H-1B workers often seek to transition to permanent residency (green card) through:
- Filing Form I-140: This petition must be filed by the employer, and approval can lead to eligibility for extensions beyond six years if certain conditions are met.
- Concurrent Filing: If an I-140 is approved and a visa number is available, individuals can file Form I-485 (Application to Adjust Status) concurrently with their I-140.
Spousal Employment
Spouses of H-1B workers may apply for work authorization under H-4 status if the principal H-1B holder has an approved I-140 or has been granted an extension beyond six years based on pending immigration processes.
Secure your status with confidence by collaborating with the legal team of Sweta Khandelwal in all facets of immigration regulations.
Advantages of EB-2 NIW Over Other Visa Categories
The EB-2 National Interest Waiver (NIW) visa offers several distinct advantages compared to other employment-based visa categories. This pathway is particularly appealing for individuals with advanced degrees or exceptional abilities who can demonstrate that their work benefits the national interest of the United States.
Here are the key advantages:
- No Employer Sponsorship Required
Unlike many other employment-based visas, such as the EB-2 standard category or H-1B, the EB-2 NIW allows applicants to self-petition. This means individuals do not need a job offer from a U.S. employer to apply, granting them greater control over their immigration process and reducing dependency on employer sponsorship.
- Bypassing Labor Certification
The NIW waives the requirement for labor certification, which is typically necessary for other employment-based visas. Labor certification requires employers to prove that there are no qualified U.S. workers available for the position, a process that can be lengthy and complex. By eliminating this step, the EB-2 NIW significantly simplifies and expedites the application process.
- Faster Processing Times
Due to the absence of labor certification and employer sponsorship requirements, the EB-2 NIW often experiences faster processing times compared to other visa categories. Applicants can benefit from expedited processing options as well, further reducing wait times for permanent residency.
- Flexibility in Employment Opportunities
EB-2 NIW recipients enjoy considerable flexibility in their employment options. They are not tied to a specific job or employer at the time of application, allowing them to pursue various opportunities across different fields that align with their expertise and contributions to national interest. This flexibility is particularly advantageous for professionals looking to explore entrepreneurial ventures or transitions between industries.
- Family Benefits
The EB-2 NIW visa extends immigration benefits not only to the primary applicant but also to their spouse and unmarried children under 21 years of age. This family inclusion is a significant advantage over some other visa categories, where dependent benefits may be more limited.
- Contribution to U.S. National Interest
Applicants must demonstrate that their work will significantly benefit the United States, aligning with national interests in areas such as technology, health, education, and business. This focus on national interest can enhance an applicant’s case by showcasing their potential impact on U.S. society and economy.
Also Read: How to Choose an Immigration Attorney? Easy Guide
International Travel Considerations
Traveling internationally while your I-485 is pending requires caution for H1-B holders. Here are key considerations to keep in mind:
- Advance Parole Requirement:
- When your I-485 application is pending, you’ll need Advance Parole to leave and re-enter the U.S. without abandoning your application. Traveling without it may lead to denial of the I-485.
- Dual Intent:
- One advantage for H1-B holders is that they can maintain H1-B status, which allows travel on an H1-B visa without disrupting their I-485 application.
In short, if you’re asking, “Can I apply for NIW 485 through my H1-B visa and travel internationally?” the answer is yes, but it’s critical to have Advance Parole or use your H1-B visa for reentry.
Ensuring you’re fully compliant with travel requirements can be seamless with expert legal counsel like Sweta Khandelwal.
Conclusion
For H1-B visa holders seeking a secure and flexible pathway to permanent residency, the EB-2 NIW provides an ideal solution. The answer to “Can I apply for NIW 485 through my H1-B visa?” is a resounding yes, provided you meet the necessary qualifications. The EB-2 NIW visa allows you to self-petition, bypass labor certification, and enjoy employment flexibility.
By following the outlined application steps, maintaining your H1-B status, and observing travel guidelines, you can secure your green card and work freely in the U.S., contributing to the nation’s interests in meaningful ways. Pursuing the EB-2 NIW through your H1-B visa offers control, freedom, and an expedited path to the life you envision in the United States. With the right strategy and documentation, your journey toward U.S. permanent residency can be both smooth and rewarding.
Need guidance on your EB-2 NIW application? Contact The Law Offices of Sweta Khandelwal. The firm is led by Sweta Khandelwal, an immigration attorney with over 18 years of experience. Specializing in business and family immigration, visas, green cards, and citizenship matters, Sweta Khandelwal provides personalized, strategic legal assistance to help you navigate complex immigration processes with confidence.
Contact the Law Offices of Sweta Khandelwal today to take the next step toward your permanent residency.
Disclaimer
Please note that the prices listed for visa services are estimates and may vary in real-time. We recommend consulting the official government websites or other authoritative resources for the most up-to-date pricing information. These estimates do not constitute a guarantee of costs, and fees may change without notice.
