Blog Post

After talking to multiple clients (including those who hired me to represent them before the U.S. Citizenship and Immigration Services - USCIS) and other prospective clients, I decided to create this post, which succinctly, I believe, addresses some of the frequently asked questions about an EB-2 (NIW) petition.

WHAT IS THE EB-2 (NIW)?

This is an employment-based second preference (EB-2) - National Interest Waiver (NIW) petition, and it is one of the statutorily approved ways for aliens/foreigners to become permanent residents in the U.S., and, subsequently, become U.S. citizens.

DO I NEED AN EMPLOYER TO QUALIFY FOR THE EB-2 (NIW)?

No, you do not. Also, you do not need an employer to sponsor you, and you do not need a job offer. EB-2 (NIW) applicants can self-petition.

DO I NEED A LABOR CERTIFICATION?

No, you do not. Labor certification, which my law firm also does, is not required for the EB-2 NIW petition, but you must satisfy a three-prong test decided in this precedent case: Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), overruling Matter of New York State Dep’t of Transp. [NYSDOT], 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998).

HOW DO I QUALIFY FOR THE EB-2 (NIW)?

There are two sub-categories:

1. Advanced Degree: Two different ways to qualify here. If you have an advanced degree (master’s or PhD), you are eligible. Alternatively, if you only have a bachelor’s degree, with 5 years of progressive post-baccalaureate work in the same field, you are eligible. This is an either-or option.

2. Exceptional Ability: This requires a showing of an exceptional ability. If you are filing under this category, you are affirming that you have a “degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

My current clients are petitioning under the first category. Every client is different, which is why I individually evaluate each client, based on the stipulated statutory requirements and the Dhanasar Framework.

I CURRENTLY LIVE OUTSIDE THE U.S.; AM I ELIGIBLE TO APPLY?

Yes, the controlling statute, The Immigration and Nationality Act (INA), does not have a geographical requirement/limitation here; so, you can apply from outside America insofar you can satisfy the requirements.

I OBTAINED MY ADVANCED DEGREES (OR/AND MY BACHELOR’S DEGREE) FROM A FOREIGN UNIVERSITY: AM I ELIGIBLE?

Yes, however, your foreign degrees must be evaluated by a third-party credential evaluation provider. In this case, I tell my clients to use the World Education Services (WES) or Foundation for International Services (FIS).

WHAT OTHER SUPPORTING DOCUMENTS DO I NEED?

Every case is unique. There is no one-size-fits-all strategy. My current clients are uniquely different. I create a uniquely tailored strategy for each client, applying the law to his/her unique profile, resulting in a petition memorandum that addresses all the nuances. Still, depending on your profile, I find the following evidence, while not outcome determinative, persuasive: recommendation letters, citations, publications, media reports, presentations (conferences and seminars), peer reviews, accomplishments, etc. Again, these are not statutory requirements; so, for a free (personalized) evaluation, reach out to my law firm.

DOES THIS PETITION COVER MY FAMILY?

Simply put, yes, but this is a two-step process.

First, we start by filing a form I-140, Immigrant Petition for Alien Worker. This is the main petition, accompanied by supporting documents (including a legal brief), that, if approved, carries a lot of benefits for the petitioner and his/her immediate family members (i.e., usually your spouse and unmarried children under the age of 21 - also known as derivative beneficiaries).

After a successful I-140 petition, the second step is triggered. There are two separate routes here, depending on your location at the time of filing. For petitioners who are currently living in the U.S., you are eligible to file a form I-485, Application to Register Permanent Residence or Adjust Status, with the USCIS. As the petitioner, you can then extend that privilege to your spouse, and unmarried children under the age of 21.

For petitioners who are currently living outside the U.S., your approved I-140 package will be sent to the National Visa Center of the U.S. State Department, and the consular processing will be done at the U.S. embassy in your home country. Subsequently, you (your spouse, and unmarried children under the age of 21) will be issued immigrant visas; and, a few weeks after arriving in the U.S., your green cards will be mailed to you.

DO YOU HAVE ADDITIONAL QUESTIONS?

I certainly hope so. When some of my current clients first reached out to me, they had questions, and I am pretty sure that prospective clients have more questions, too. This petition requires a clear understanding of some technical procedures, laws, and precedential and non-precedential decisions, and I am happy to provide answers to any pertinent questions that this article did not cover.

Talking to a lawyer, who can fiercely advocate on your behalf, is highly recommended. That is where my firm comes in. Because of the complexity of this petition, I provide different services to different prospective clients. If you want a full package (end-to end processing), I will be happy to provide that. If you want a limited package, I will be happy to provide that as well. The advantage of having a lawyer is that you have a go-to person to advocate, represent and diligently counsel you at every step of the way, mitigating the inherent risks involved in your application.

And you can count on my law firm to represent you diligently. I bring the same level of agility, problem-solving skills, and creativity, which I used to solve complex problems in the business world, to my firm. To the extent possible under the law, I will provide you with unparalleled legal services.

Wherever you are on your immigration journey, my law firm will be happy to represent you.

For a free (100%) case evaluation, contact the attorney-in-charge of The Law Office of Akintunde F Adeyemo, PLLC:

Akintunde F. Adeyemo, Esq.

Attorney, Counselor & Solicitor

734-318-7053 (Call, Text, Including WhatsApp)

Email address: info@akinalaw.com

Please include your updated resume/CV in the email. If you do not have an updated resume, indicate whether you have advanced degrees (or a first degree, with 5 years of progressive post-baccalaureate work in the same field).

The information in this article is for general information purposes only. Nothing in this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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