Mukul Kelkar

Recently, U.S. Citizenship and Immigration Services has been rapidly moving the cut-off date forward for the second employment-based preference (EB-2) for petitioners from India. The second employment-based preference is reserved for members of professions holding advanced degrees, persons of exceptional ability, and people who are eligible for a national interest waiver.

Before this rapid forward movement, EB-2 petitioners from India experienced significant waiting time between the approval of their petition and the actual date on which they can receive their visa. However, this waiting time has now been reduced to two years. Now, for Indian EB-2 petitioners, an approval of their petition today means that they can get their visas within two years from the time of filing.

USCIS has been rapidly moving the cut-off date forward as a response to the extremely low rate of new filings for adjustment of status in recent months. USCIS hopes to generate demand and maximize the number of visas issued annually. However, once the amount of new filings increases significantly, USCIS will slow down or stop the movement of the cut-off date. As a result, the waiting time between approval of the petition and the availability of a visa will again increase significantly. Due to this effect, it is extremely important to file the EB-2 PERM Labor Certifications or NIW (I-140) petitions as soon as possible in order to take advantage of this short waiting period.

In order to file an NIW petition, the candidate must have an “advanced degree” or “exceptional ability.” The requirements for an NIW make it a very suitable option for academic scholars, researchers, Ph.D. students, post doctoral research fellows, and other advanced degree holders. Advanced degrees include a Ph.D., M.A., M.S., M.D., M.E., or their equivalent.

The candidate must also be able to demonstrate: (1) that he or she is seeking employment in a field of substantial importance to the United States; (2) the benefit from the candidate’s proposed activity or employment will be national in scope; and (3) the requirement of a Labor Certification will have an adverse effect on the U.S. national interest. Whether or not a candidate can meet these conditions requires the analysis of an experienced attorney who is familiar with this sort of case.

The biggest advantage of applying for an NIW is that there is no requirement of a job offer from an employer in order to apply. Candidates can petition on behalf of themselves. Since job offers are hard to come by in the current economic climate, applying for an NIW is an attractive way for petitioners to apply for a U.S. visa, especially those who do not currently have job offers from U.S. employers. Nevertheless, U.S. employers may also file an NIW petition on behalf of their employee as well.

Another advantage is that labor certification is not required. Because the labor certification process can be very long and difficult, skipping this process will increase the chances of approval.

Furthermore, an NIW applicant can also attempt to file other immigration petitions, like an EB-1(a) Extraordinary Ability petition, while the NIW petition is pending. The various alternative options available provide flexibility to an NIW applicant.

Although everyone should take a look whether or not he or she can apply for an EB-2 petition, it should be extremely attractive to those who are currently stuck waiting for a long period of time for their EB-3 petition for “skilled workers,” “professionals,” and “other workers.” These EB-3 petitions can be changed to NIW petitions provided that certain criteria are met. One of these criteria requires the employer to have different the job requirements and description for the “new” positions.

With the right qualifications, this speeds up your immigration process tremendously. But time is of the essence – once the waiting period increases again, this small window of opportunity will likely close.

Mukul Kelkar is a former Texas prosecutor who now works for the law firm Nguyen Chen LLP. His firm mainly focuses on labor and employment and immigration law. He can be reached at mkelkar@nguyen-chen.com or at (832) 767-0339.