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The National Interest Waiver is an excellent way for entrepreneurs, doctors, engineers, and even accountants to bypass obstacles to a green card. However, many people want to know if changing jobs after National Interest Waiver approval will affect their green card status in the U.S. If that’s you, keep reading to find out more.
If you are obtaining an NIW for your EB-2 green card, then changing your job may require you to file a new I-140 and a new application for your NIW. However, if you change jobs after National Interest Waiver approval, you may encounter difficulties proving that your new occupation is in the national interest.
Most people who change jobs after National Interest Waiver approval do not encounter difficulties if they stay within their field. As long as your new job is identical or very similar to the job you used for your NIW, you should be able to transfer with the help of an immigration attorney.
First, determine if your job is in the national interest. However, jobs related to technology development and scientific research are typically the most beneficial to the U.S. economy.
However, that does not mean the new job must be in either of those career paths. You can switch to any career you choose if you provide convincing evidence to prove that what you are doing benefits the U.S. economy or general well-being.
We have seen several cases of people who want to leave their current job to work in an entirely different field. This is a tough situation as you will not only need to prove that your new enterprise is in the national interest, but you will also need to prove that you are qualified to advance the enterprise.
Here is an example.
Ivan had his NIW approved so that he could work as an architectural engineer in the U.S. However, he soon loses interest in the job and instead desires to become an electrical engineer instead. Ivan will need to prove that he is qualified to be an electrical engineer through his educational background, experience, or past successes.
While it is not impossible, few people would be able to convince the USCIS of their ability to develop enterprises in different fields that will have a substantial positive impact on the U.S. If this is the route that you wish to take, you should very closely alongside an immigration attorney to make sure that your case is waterproof.
It is important to note that physicians must work in their field in an underserved area for the first five years of their stay under EB-2 status to qualify for an NIW. Therefore, they could not change jobs outside their field after NIW approval.
It also stands to reason that few physicians could claim expertise in more than one specialized area of medicine. Because of these factors, changing jobs after your NIW is approved is only possible if you stay in your original field of expertise.
To understand the ins and outs of the National Interest Waiver (NIW), we must first look at the reason for applying for one in the first place. In all green card cases (except the EB-1A), the first step is to acquire a PERM Labor Certification, which involves having your employer undergo a recruiting process to ensure no qualified U.S. workers are available for your position.
As an entrepreneur, doctor, or self-practicing engineer, you may not have an employer to acquire a PERM on your behalf. The National Interest Waiver allows EB-2 applicants (i.e., people with advanced degrees or exceptional ability in their field) to bypass the PERM Labor Certification requirement and self-petition for a green card without an employer.
Not everyone who applies for an EB-2 green card is eligible for an NIW. Those who wish to go around the PERM requirement must demonstrate that their work in the U.S. will be in the national interest. The most recent set of criteria are:
It is important to note that because doctors and physicians tend to fulfill all three criteria automatically, they have a different set of rules. These are:
Now that we know precisely what an NIW is and how to obtain one, we can see how the rules might allow changing jobs after national interest waiver approval.
The following are NIW jobs that qualify (not a comprehensive list):
This list is not all the NIW jobs that qualify. Discuss whether your occupation fits the criteria with your immigration attorney.
After your NIW is approved, you or your legal representative will receive Form I-797, Notice of Action, from USCIS.
The following steps involve applying for permanent residence. You can do this in the United States or at a U.S. consulate abroad. Depending on the availability of immigrant visa numbers in the employment-based second preference category, it may be possible to file the permanent residence application alongside the I-140 NIW concurrently. The Visa Bulletin provides information on the availability of immigrant visa numbers in different categories and can guide individuals in determining the appropriate timing for their application.
Yes, you may change employers after your NIW has been approved. The NIW allows you to self-petition for your EB-2 green card, meaning your status is not tied to a particular job or employer, unlike employer-sponsored categories. What is important is that you continue to satisfy the core requirements of the NIW, which includes advancing your proposed endeavor and that the proposed endeavor continues to be of national importance to the United States.
These two green cards allow you to do those:
Yes, USCIS began premium processing for EB-2 National Interest Waiver (NIW) I-140 petitions received on or before August 1, 2021. The fee is $2,500.
You can include information related to your educational background/skills, stories of success in your field, a plan of action for your endeavor, records showing past accomplishments, the interest of shareholders/customers/stakeholders, etc.
It is typically between 3 to 9 months. This time greatly depends on the assigned USCIS Service Center and the adjudicating officer. Processing times vary as USCIS evaluates each application on a case-by-case basis.
Yes, you can still file the NIW application. The fact that you have a pending PERM application doesn’t stop you from pursuing an NIW petition. The PERM and NIW are two different cases handled by different agencies. USCIS and DOL treat each petition individually, which means one can submit multiple petitions under various categories simultaneously, and the decision on one petition will not affect the other. It is advantageous to do so because if one petition is denied, chances are the other one will be approved. The only implication is that a non-refundable fee is attached to each petition you file. If you can afford it, you can file as many petitions as you want.
No, it is not mandatory to have a Ph.D. Although the NIW requirements, as in the Matter of Dhanasar, state that a petitioner’s educational background is one of the factors that can help determine if they can advance their proposed endeavor, it doesn’t stipulate a Ph.D. as a requirement.
Many successful NIW applicants apply without a Ph.D. VisaNation Law Group has helped many clients process and acquire NIW green cards without a Ph.D. Remember that the NIW has two major eligibility routes: having an advanced degree or having exceptional ability in your field. An advanced degree means anything higher than a bachelor’s degree and does not mean you need a Ph.D. The most important thing is to present your evidence to USCIS convincingly.
Advocacy is the most critical factor in processing the NIW petition. In other words, how you present or argue your case. Since no particular job or talent definitively determines national importance, it is left to every petitioner to prove their eligibility based on what they possess. There have been many qualified petitioners with outstanding achievements whose petitions were rejected because of poor presentation. At the same time, there have been people with lesser achievements whose petitions were approved because of their advocacy.
If your presentation is too long and incoherent, the adjudicating officer may struggle to identify your merits and qualifications. Similarly, if the presentation is too short and unconvincing, it won’t be easy to persuade the adjudicating officer. You must do your due diligence and let your case strike the right balance. You should engage an experienced immigration lawyer to improve your chances of petition approval.
USCIS uses a two-part evaluation method to determine whether the evidence submitted by an NIW petitioner establishes that the “proposed endeavor will be national in scope and whether the national interest will be adversely affected if a Labor Certification were required.” First, USCIS will evaluate the submitted evidence to decide which evidence meets the required regulatory criteria. Second, they will evaluate the submitted evidence together to choose based on the total requirements for NIW.
You may file your I-140 for NIW and I-485 for status adjustment concurrently (together simultaneously). You may also decide to file them separately by submitting your I-485 anytime after submitting your I-140.
To continue working legitimately while the petition is pending, you may file Form I-765 for an employment authorization document with your I-485. While the I-485 may take several months or even years before a decision depending on your priority date, the I-765 can be processed within a few months allowing you to continue using it to work or even seek employment.
Another option is to ask your employer to file an H-1B on your behalf. The only issue is that it will require going through the H-1B process, and there may be a delay. So, getting an EAD through I-485 likely remains your best option. You may also file Form I-131 with your I-485 to obtain advance parole, your valid travel document, while the I-485 is pending.
Again, the issue isn’t about the change of career or job but whether you maintain the NIW requirements in your new career. Suppose you can prove that your new career is of national importance and you have consistently advanced your chosen endeavor. In that case, you shouldn’t have a problem regarding that during your citizenship application. But if you are not sure of this, it is recommended that you contact an immigration expert.
Established in Matter of Dhanasar, the three-pronged test requires the following:
Your immigration attorney will help you highlight how your endeavor helps benefit the United States, how working conditions will be improved for U.S. workers, immediate and long-term benefits, etc.
Yes, that does, which means you may qualify for an EB-2 visa. Alternatively, an advanced degree like a Ph.D. or a master’s degree would also allow you to qualify.
There could be several reasons USCIS denied your National Interest Waiver request, including:
The success of an NIW request relies heavily on providing supporting solid evidence to prove you meet the eligibility requirements. If the documentation submitted is incomplete, inconsistent, or does not sufficiently establish the applicant’s qualifications and the national interest aspect of their work, the USCIS may deny the NIW request. It is crucial to submit comprehensive documentation that demonstrates the significance and impact of the applicant’s work. If the USCIS denies your request, you may be able to appeal the decision with help from your immigration representative.
Yes, you do need to inform USCIS if you are in the United States on a non-immigrant visa. File a new petition or an amendment to your existing petition, depending on the circumstances. Failure to inform the USCIS about a job change can have immigration consequences, so complying with the reporting requirements is essential. Discuss this more with your immigration attorney.
Getting an EB-2 NIW is a delicate process. From the experience of several of their clients, choosing the correct evidence to convince the USCIS that your endeavor is in the national interest of the U.S. is extremely difficult without the help of a qualified attorney. Don’t go it alone; hire an expert to help you with your case.
VisaNation Law Group’s immigration lawyers have a long track record of success in helping people get their EB-2 green cards with the NIW or without. Whether you need to find the right documents to send to the USCIS or are changing jobs after National Interest Waiver approval, their attorneys are ready to help you.
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