National Interest Waiver (NIW)
How is NIW filed?
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I do not exactly understand NIW cases, does it come under employment based or is it a separate category? I didn’t get an idea by going through different websites. Is it that you file under some employment-based category and then apply for NIW? How is NIW filed, how long does it take normally to get NIW and what you do after you get NIW?
1. Yes, EB-2 NIW is a sub-category of second preference, employment-based immigration.
2. In order to apply for EB-2 NIW, you must file an I-140 under EB-2 NIW (National Interest Waiver). In order to qualify under EB-2 NIW, you must demonstrate that your work is in an area of substantial intrinsic merit, that the benefit of your work will be national in scope to the US, and that you are more qualified than an available US worker with the same minimum qualifications. For more information about qualifying under EB-2 NIW, please see this link (http://www.wegreened.com/niw/EB2-Employment-Based-2nd-Preference) to our website.
3. It takes the USCIS on average 2-6 months to process I-140 petitions, regardless of which category they are filed under or the country of origin of the beneficiary. For more information regarding current processing times, please see this link (https://egov.uscis.gov/cris/processTimesDisplayInit.do).
4. There are two steps to getting a green card: filing an I-140 to qualify yourself under certain immigration category (such as EB-1B or EB-2 NIW) and filing an I-485 to adjust your immigration status. You will be the only person filing an I-140 and after your I-140 approval, both you and any dependents will need to file I-485s to adjust your immigration status in order to become permanent residents.
If you are born in India, you will not be eligible to file the I-485 for adjustment of status based on your I-140 filed under EB-2 NIW until your priority date is current, unless you have a spouse who was born in a country other than India or China. The priority date for people born in India with approved EB-2 petitions is currently November 15, 2004. But, priority dates do fluctuate. For example, in Feburary 2012, the priority date for people born in India under EB-2 was 2010.
So, you will need to maintain a valid non-immigrant visa status until you are able to file the I-485. But, if your I-140 filed under EB-2 NIW remains pending for at least 365 days, your employer can extend your H-1B status for one year at a time beyond the normal 6-year maximum in H-1B status. Also, once your I-140 has been approved, and if your country is still backlogged so you cannot file your I-485, your employer can extend your H-1B status for up to 3 years.
