US EB-2 Visa: Rules for foreign workers to work in America without a job offer updated

US has released updates in their visa policies for foreign workers to work in America without a job offer. Even though, a job offer from an American employer is a pre-requisite, foreign workers applying for an EB-2 visa can request for waiver of the job offer under specific circumstances.

U.S. Citizenship and Immigration Services has updated its policy guidance to clarify how they evaluate eligibility for the second preference employment-based (EB-2) classification for immigrant petitions filed with a request for a national interest waiver (NIW).

In general, an employer files an EB-2 petition using Form I-140, Immigrant Petition for foreign workers, after obtaining a labor certification from the Department of Labor.

USCIS, however, can waive the requirement of a job offer, and thus, the labor certification if it is in the interest of the United States. This waiver of the job offer is known as the national interest waiver.

In addition, individuals seeking an NIW may file a petition on their behalf. A petition filed with a request for a national interest waiver on behalf of a person does not need to be supported by a job offer; therefore, the person may file as a self-petitioner.

A waiver of a job offer also includes a waiver of the permanent labor certification requirement. In support of the petition, however, the petitioner must submit the employee-specific portions of a permanent labor certification (without DOL approval). The petitioner may submit either Form ETA 750B or Form ETA 9089.

A petitioner seeking an NIW must first demonstrate that they qualify for the underlying EB-2 classification as either a member of the professions holding an advanced degree or an individual of exceptional ability in the sciences, arts, or business.

The new guidance explains how, for advanced degree professionals seeking an NIW, USCIS considers whether the occupation in which the petitioner proposes to advance an endeavor is a profession and, if applicable, whether the 5 years of post-bachelor’s experience is in the specialty.

The guidance also addresses how, for persons of exceptional ability seeking an NIW, that exceptional ability must relate to the endeavor proposed as part of the NIW request. USCIS determine the relationship of exceptional ability to the proposed endeavor on a case-by-case basis, considering any shared skillsets, knowledge, or expertise.

In addition, this new guidance provides information about how USCIS evaluates whether a proposed endeavor has national importance and explains how they evaluate evidence, such as letters of support and business plans when determining whether a person is well positioned to advance an endeavor.

Therefore, those seeking a national interest waiver are requesting that the job offer, and thus the labor certification, be waived because it is in the interest of the United States. The endeavors that qualify for a national interest waiver are not defined by statute; instead, USCIS considers them on a case-by-case basis.

Those seeking a national interest waiver may self-petition (you do not need an employer to sponsor you) and you do not need to obtain a labor certification from the DOL. Instead, the petition must be accompanied by a completed Form ETA-9089, Appendix A and a signed Form ETA-9089, Final Determination.