INS on Petition Filed Under EB-2 with Approved NIW
Serotte, Reich & Seipp
300 Delaware Avenue
Buffalo, NY 14202
Dear Mr. Reich:
I am in receipt of your letter, dated August 3, concerning the validity of a petition filed under the employment-based second immigrant category (EB-2) in which a national interest waiver of the job offer requirement was granted pursuant to section 203(b)(2)(B) of the Immigration and Nationality Act (Act).
In the situation you raise, a service center approved an EB-2 petition filed by an employer on behalf of an alien of exceptional ability with a national interest waiver. The basis for the national interest waiver was the alien's exceptional ability in the industrial molding process, which improves the competitiveness of U.S. products, thereby improving the economy. Subsequently, the employer which signed the petition closed its operation, and the alien was hired by a competitor to work in the field or industrial molding. You ask whether the approved petition remains valid.
When a service center approves a petition based on a national interest waiver, the job offer requirement is waived, regardless of whether an employer signed the I-140 petition. In determining the validity of an approved petition filed under the national interest waiver provision, the primary issue is whether the alien still intends to be performing the activity or work which was the basis for the national interest waiver. If the national interest waiver was based on the alien's work with a particular employer, a petition filed by the employer would no longer be valid if the employer will not hire the alien. If, however, the basis for the national interest waiver was the alien's contributions to an industry which can be utilized by another employer, the petition may remain valid. I cannot specifically address whether the petition which you discuss in your letter remains valid. The validity of each petition should be determined on a case-by-case basis, when it is brought to the attention of an adjudication officer.
I hope that this response will be useful to you.
Edward H. Skerrett