If you are applying for a National Interest Waiver, you might be wondering how you are going to live in the United States and under what circumstances. One of the benefits of applying for a National Interest Waiver if you are already in the United States is that you can also file for an adjustment of status by submitting both your self-petition and your I-485 Adjustment of Status application.
It should be noted that the NIW is not itself a green card, but rather a pathway to securing a green card in the United States. For example, if you are going through consular processing, you will be issued an immigrant visa to travel to the United States, but then you will have to adjust your status once in the U.S. and eventually pursue a green card.
The benefits of filing an I-485 once you in the United States are pretty straightforward. In addition to being an NIW recipient, you are now looking to adjust your status and become a legal permanent resident.
Things to Consider
For this blog, however, it is important to consider one problem that NIW applicants might run into while they are pursuing their waivers to work in the U.S. legally. This has to do with the adjudication period of your NIW in addition to the adjudication period of your I-485 application. We want to better understand how both processes might cause unfortunate circumstances for an applicant if something goes wrong.
The main topic of discussion revolves around work permits. If you have applied for an NIW, and you are also waiting to have your green card application processed, you might be in a precarious situation without even realizing it. This is because after you file your I-485 application you will most likely receive an EAD (work permit) after 3 months. However, your work permit is dependent in this circumstance on your NIW application. Why? Because you wouldn’t have been able to file for an adjustment of status application unless you also filed concurrently for an NIW. Thus, your self-petition created a possibility where you could file for a green card.
What Happens Next?
According to U.S. immigration law, you could have received a work permit and then have your NIW application rejected. In this circumstance, this would also mean that your adjustment of status application would be rejected too. If this happens, your work permit would also unfortunately become invalid without an applicant even realizing it. If you are an NIW applicant, it is important to understand this because you should be planning for how you are going to live in the United States.
Consequences of Working on an Invalid EAD
This brings us to another crucial point in the NIW process if you receive a work permit—what should you do if your status becomes invalid while you are living in the United States. You might very well decide to take your chances and continue working with your EAD card even though you know that it is technically now invalid.
Overall, this is not a good idea because if the USCIS or ICE determines that you are in violation of U.S. immigration law, you could be placed into removal proceedings. Even if this doesn’t happen, it could hurt your chances for future petitions/immigrant applications. As an applicant, you should know that on most USCIS forms you will have to answer questions relating to whether or not you have ever overstayed a visa or a temporary status whilst in the United States. This is a situation that would absolutely apply to applicants who decide to stay in the U.S. after they have had their NIW rejected.
While it may be possible to stay in the U.S. under your previous non-immigrant status, we also advise applicants to understand that by pursuing an NIW and wanting to stay in the U.S., you might also be violating the clause of your temporary visa (F-1 for example) where you pledged your signature on behalf of returning to your country of citizenship after your studies have ended.