National Interest Waiver FAQs

Thursday, March 9, 2023 - 08:01

NIW: Porting priority date


Hello, Let me start with my question: Is it possible to port priority date from an existing employer sponsored EB2 petition to a new EB2 NIW petition ? I am an Indian citizen with a masters degree in Electrical Engineering from Univ. of Maryland College Park. I have a pending EB2 petition (approved I140) through my employer but am also exploring a self petitioned EB2 NIW application in parallel. I would like to understand if the earlier priority date from my employer sponsored petition can be ported to the NIW petition, if approved. Please advise. Thank You Mathew


Yes. You can port the PD.

Monday, February 6, 2023 - 01:03

Entering the U.S. on a visitor visa while green card is pending || qualifying for Visa Waiver Program (VWP) || Spouse visa through H-1, L-1, or O-1 || Any special visas for UK, EU, Singapore, Dubai or Australia


Have any rules changed regarding getting a spouse visa through H1, L1, or O1? Also is traveling on a tourist visa to the US after marriage not ok, with a pending GC application? Finally, does the US have any special agreements with the UK, EU, Singapore, Dubai or Australia for visas that may qualify in this scenario?


Video URL

Wednesday, November 30, 2022 - 06:54

How long does it take from PERM to Green Card, and difference between NIW and PERM Labor Certification?


1) How long does one have to wait in total if the company applied for PERM (EB2 - MS CS degree), and THEN Concurrently applied for I-140 (premium) and I-485 and the country of birth is UAE?

2) Can the above be done on an F-1 (OPT + STEM OPT) Visa instead of an H-1B? And any potential issues for F-1 in this case?

3) In this scenario, how would it work if the person also submits NIW in parallel with PERM?



Video URL

Thursday, August 4, 2022 - 04:01

PhD students and eligibility for EB-2 NIW and working on F-1 OPT


1) Is it possible for current PhD students to apply for EB-2 NIW?
I have been through websites where they have said It's Possible, but then why is it not possible for current MS students?
2) Is it possible to work and study in F-1 OPT after completing the degree?


Video URL

Thursday, February 22, 2018 - 02:27

National Interest Waiver (NIW) Filing When Priority Date is Not Current


I am a staff in University of Pittsburgh and still have 3 more years to complete 6 yrs of my H1B. H1B sponsorship is an issue for me getting a new job.
1) When I apply for a NIW -EB2, can I simultaneously apply for I140, EAD, 485 simultaneously?
2) Although the green card date for Indians with EB2 is not current, can USCIS approve my EAD much earlier ( may be within a year) compared to approving 485 which might take several years?
3) Further can I use that approved EAD to change jobs by bypassing H1B sponsorship?


Video URL

Friday, May 19, 2017 - 23:00

Physicians (FMG) NIW, AC21 portability, Teaching to clinical position


Do the 3 years spent in residency training in an HPSA/MUA area be counted towards the five years required for NIW? The residency training (3 years) and subsequent job (2 years) were on H1B visa in two different HPSA/MUA areas but not processed through NIW route. Can the NIW petition be filed now retrospectively for those years already worked in underserved areas? My current GC sponsoring job is in a University teaching hospital (job designation Assistant Professor) but obviously also involves treating patients. The PERM prevailing wage category was teacher/ Professor but job description included patient care. Can the job be changed to that involving only patient care (no teaching) and still be considered same/ similar? How about a job (with patient care only & no teaching) in a private practice (as opposed to hospital employee)?


Watch the Video on this FAQ: Physicians (FMG) NIW, AC21 portability, Teaching to clinical position

Video Transcription

Under the current regulations beginning January 17, you can actually ask for a predetermination before you change jobs. You can send your Supplement J and wait, for they got to decide it before you join the new employer. They will readjudicate the case so you will know if you are safe when you move instead of just jumping. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Tuesday, January 3, 2017 - 10:43

Processing Times Involved in NIW


If I may verify the processing times involved in NIW. Since it falls under EB2 category, I am assuming it may be a long time before I can get my EAD card and be able to change employers. Also, I want to confirm if there could be issues if I change employers during the process - If so, I'd prefer to change my current employer before starting with it.


You can change employers any time if you are a self-applicant and will continue to work in your stated area of national interest.  But NIW priority date will take the same time as a normal EB-2 application does.  See: under employment-based category 2.

Thursday, November 19, 2015 - 07:19

Physician filing green card


1. I am a Canadian physician on an H-1B (never been on J-1) which expires June 30th, 2017. I am currently doing a 2 year fellowship. I'm contemplating pursuing the physician NIW process vs EB-2 through potential employer.
For EB-2, my understanding is that I need to be eligible for a full-time physician position on the day the employer submits the ad. Since I won't complete my general residency until June 30th, 2016, my potential employer cannot begin recruitment until July 1, 2016, correct?<br>
2. In your experience, is 1 year enough time to complete the EB-2 process?


See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

FAQ Transcript:

Answer 1. In this context we are talking about a PERM and not the NIW. Also remember NIW is under EB-2. Most physicians fall under the EB-2 category.  Here is how a PERM can be drafted. It depends on your employers, your lawyers and you and there is no requirement that you be fully licensed. Only that you are eligible for a license, or you are at a certain level of profession shall we say maturity or advancement so it could be possible to file for a PERM depending upon what the employers requirements are and  what the state rules for licensing are to file upon even before what you believe is your eligibility. Also remember rules for giving full license to residents differ from state to state. They are not the same in every state. So you have to look at the states in which you are going to start the PERM application.

Note: Your eligibility for licensing does not have to be from when the date of recruitment begins. It has to be established the date the PERM is filed and typically recruitment can last a few months. Before that your eligibility must be perfect upon the date PERM is filed and not when the recruitment begins. 

Answer 2.  It may or may not be, very difficult to say.

Thursday, May 22, 2014 - 05:39

Do I Qualify for EB-1


I got my Ph.D. (biochemistry and molecular biology) and I have 3+ years of post-doctoral experience. I have 4 publications (3 lead author) in human pathogenic research. Could you please comment on my eligibility for EB-1 or NIW.


My best GUESS is probably not. While NIW/EB-1 should not be a numbers game: how many publications, how many citations..., but it often ends up like that. Given that if you had one publication in a premier journal like Science, that would could count a lot more than 5 or 10 publications in a lower impact factor journal.

Monday, December 30, 2013 - 03:06

Green Card Without Employer's Support


Is there a direct way for me to get a green card or apply for EB-3 without my employer's support? My employer is unwilling to support me for any working visa and I am already out of the status due to this.


Three options: Extraordinary Ability Aliens, National Interest Waiver and Investment (EB-5).

Monday, December 30, 2013 - 02:53

NIW Requirements for a Specialist Physician


Does the USCIS make a distinction as to whether a specialist physician works in a Medically Underserved Area vs Health Professional Shortage Area versus Physician Scarcity Area? My job falls in MUA, HPSA but not PSA , is this a problem for a specialist?


NIW requires "You must serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA)."

Tuesday, September 1, 2009 - 04:56

Obtaining H-1 Extension beyond 6 years


My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time.


H-1 extension beyond six years can be obtained under two circumstances:

First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the green card process was started a year ago. The GC process is started for:

- Labor Certification based cases (including PERM) the date for the begining of the countdown is the date when the labor certification is officially received:
- for PRE PERM cases - by the local office (SWA); and
- for PERM cases - the date it is received by the DOL; and

-EB-1 and National Interest Waiver cases; when the I-140 is officially filed with CIS.

Second, if your I-140 has been approved but you cannot file I-485 because your priority date has retrogressed, you can get H-1 extensions (most probably) in chunks of three years each time.

You are permitted to apply for an extension 6 months ahead of time, as long a you meet one of the above two criteria on the requested start date of H-1.

Monday, April 13, 2009 - 01:00

Criteria for Outstanding Researcher/Professor Category



Preliminary requirement: The applicants must be able to document at least three years of experience in teaching and/or research in the specified academic field and that they are "recognized internationally."

Generally speaking, experience in teaching or research while working on an advanced degree will not satisfy the three year requirement.
We can seek an exception if the applicant has acquired the degree, and if the teaching duties included full responsibilities for the courses taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. 8 CFR

8 CFR 204.5(I)(3)(I) requires that the applicant must demonstrate that they are recognized internationally in their academic
field by presenting evidence that meets at least two of the following six documentation categories:

1. Receipt of major prizes or awards for outstanding achievement in the academic field;
2. Membership in associations in the academic field for which the classification is sought which require outstanding achievement
of their members;
3. Published material in professional publications written by others about the alien's work in the academic field;
4. Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same or
an allied academic field;
5. Evidence of the individual's original scientific or scholarly research contributions to the academic field; and
6. Evidence of the alien's authorship of scholarly books or articles in scholarly journals with international circulation in the academic field.

Note that professors who qualify for this category through job offers for tenure-track positions will not lose their green card if they fail to reach tenure

Wednesday, March 11, 2009 - 01:00

Pointers for EB1/NIW filings



The following pointers have emerged from recent cases and comments from USCIS:

1. Make sure you document the citation records (to show how many hits the journal gets), impact factor and circulation figures of the journals in which your publications appear.

2. (This we already knew) Recommendations from people who know you personally carry less weight than from those who know you by reputation.

3. Emphasize/document the "international" nature of your accomplishments.

Note: These comments have no application to physicians filing NIW through under served areas.

Tuesday, November 18, 2008 - 01:00

Filing EB1 while EB2 AOS is pending



I am thinking about applying for green card under EB-1A or EB-1B. Currently I have an approved I-140 (2005, EB2). I have a few questions:
Q.a) Is the EB1A or EB1-B I-140 premium processed?

Q.b) Do I need to submit another set of I-485 with the EB-1 application even though the EB-2 I-485 are pending with USCIS?

Q.c) Which option would be better for me - EB-1A or EB-1B? I am currently an associate professor at XXX University.

Ans.a) Currently, there is no premium processing for this type of cases.

Ans.b) No. We should be able to use the same 485.

Ans.c) The answer to that depends upon two main factors: whether or not you have a "permanent" job and whether or not we have a strong enough resume for the higher category. Generally speaking, if we have a permanent job, I shoot for the lower category where the approval is more likely. Just send an email to Leslie for us to talk more about this issue. Email her your resume also.


Tuesday, June 17, 2008 - 01:00

Basic Criteria for Extraordinary Ability


What is the basic criteria for extraordinary ability?


This morning, I was working on explaining to a client (whom I respect greatly), one of the foremost musicians from India, how EB1 (Extraordinary Ability) category applies to musicians and performers. As I was sending him the basic information on EB1 category, I thought I will share the general criteria with all of you. This information is for EA, generally and applies to all fields - not just music. See attached.