EB-2 NIW Visa Guide
EB-2 NIW Visa Guide: A Path to U.S. Permanent Residency
For individuals with an advanced degree or exceptional ability who can demonstrate a substantial positive impact to the U.S.
Do you have an advanced degree (master’s, PhD, etc.), or a four-year bachelor’s degree plus five years of progressive work experience, and are doing important work that will benefit the national interest of the United States? If yes, you may be eligible for the EB2 NIW (National Interest Waiver) program, an integral part of the U.S. immigration framework. This program provides a path to lawful permanent residency for individuals with advanced degrees or exceptional ability, bypassing the rigorous labor certification process. This article highlights the EB2 NIW program’s eligibility criteria, application process, timeline, costs, and potential benefits.
What is EB-2 NIW National Interest Waiver?
We’ve all heard of EB2. But what is the EB2 National Interest Waiver?
In short, the EB2 National Interest Waiver (NIW) is a shortcut to EB2 green card. By proving that your presence in United States will be in the National interest of the United States, EB2 NIW lets you skip the line and waive the PERM process altogether. Sounds too good to be true? Perhaps it is?
To get the EB2 NIW, you must prove that what you do will “benefit the national interest.” Here, “national interest” means “having a substantial positive impact on the United States” such that it makes sense to bypass the traditional PERM recruitment process. In a traditional EB2 application, a foreign worker’s U.S. employer sponsor typically has to test the local labor market through advertising and recruitment to determine there are no minimally qualified U.S. workers that are able and willing to take the job. This process is managed by the Department of Labor via the Permanent Electronic Review Management (PERM) system. The PERM process can be time consuming. Furthermore, a PERM EB2 application must be sponsored by a U.S. employer. This creates loads of challenges for foreign workers.
However, foreign nationals whose work benefit the U.S. “national interest” do not need to go through the lengthy PERM process. Furthermore, EB2 NIW allows self-petition, which means that the applicant does not even need to have an employer sponsor. Lastly, EB2 NIW has no prevailing wage requirements.
Who qualifies for EB-2 NIW National Interest Waiver?
Requirement One: Advanced Degree or Exceptional Ability
To qualify for an NIW petition, you must meet one of the following criteria:
Advanced Degree
- You must possess a Master’s degree, PhD, JD, MD, or equivalent advanced degree.
- Alternatively, a four-year bachelor’s degree plus five years of progressive work experience in your field also qualifies.
Exceptional Ability
- Exceptional ability refers to expertise significantly beyond that which is ordinarily encountered in the sciences, arts, or business. To prove this, you need to satisfy at least three of the following criteria:
- Official academic records showing a degree, diploma, or certificate related to your area of exceptional ability.
- Letters confirming at least 10 years of full-time experience in your field.
- A license or certification to practice your profession.
- Evidence of a salary or remuneration that demonstrates your exceptional ability.
- Membership in professional associations.
- Recognition for achievements and significant contributions to your field by peers, government entities, or professional organizations.
- Other comparable evidence demonstrating eligibility.
- Exceptional ability refers to expertise significantly beyond that which is ordinarily encountered in the sciences, arts, or business. To prove this, you need to satisfy at least three of the following criteria:
Meeting these requirements is essential to qualify for the EB2 NIW application.
Requirement Two: National Interest Waiver
In addition to providing evidence of an advanced degree or exceptional ability (described above), you must also meet the following three National Interest Waiver criteria to demonstrate that it is in the national interest for USCIS to waive the requirement of a job offer and labor certification:
- The foreign worker's proposed endeavor has both substantial merit and national importance.
- The foreign worker is well positioned to advance the goals of their work.
- On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.
Elaboration on the Three National Interest Waiver (NIW) Criteria with Examples
1. Substantial Merit and National Importance
This means that your work or project should have significant value and benefit for the entire United States. It should address an issue or contribute to a field that is vital to the nation. For example:
- A scientist working on groundbreaking medical research that could lead to a cure for a widespread disease would demonstrate substantial merit and national importance.
- An entrepreneur creating a technology that can improve national cybersecurity might also meet this criterion.
2. Well Positioned to Advance the Goals
This criterion focuses on showing that you are the right person to carry out the work or project, and that you have the skills and experience to make it successful. For instance:
- An architect with a history of designing eco-friendly buildings and plans to work on sustainable infrastructure projects could be considered well-positioned to advance environmental sustainability goals.
- A foreign-born teacher specializing in bilingual education, aiming to improve language education in underserved communities, could be seen as well-positioned to advance the goal of educational equality.
3. Beneficial to the United States to Waive Job Offer and Labor Certification
This means that waiving the usual requirement of a job offer and labor certification should ultimately be advantageous for the United States. For example:
- If your work is in a field where there's a shortage of qualified professionals in the U.S., such as certain healthcare specialties or technology sectors, waiving the job offer requirement could be beneficial.
- If your project could lead to significant economic growth, job creation, or innovation, it could be in the U.S. national interest to waive the usual labor certification process.
Summary
To qualify for a NationalInterest Waiver, you need to show that your work or project is important to the entire country, that you are well-suited to carry it out, and that it benefits the United States to waive the usual job offer and labor certification requirements for you.
How does the EB-2 NIW process work?
How Difficult is the EB2 NIW?
Securing an EB2 NIW visa can be a challenging task due to the stringent criteria set by the United States Citizenship and Immigration Services (USCIS). The specifics of “exceptional ability” and “national interest” are particularly complex, requiring substantial supporting documentation to prove the merits of the case. The applicant must demonstrate that they are significantly more proficient in their field than an average professional, and their proposed endeavor must considerably benefit the U.S. Moreover, this visa category does not have a clearly defined success rate, as each application’s approval heavily relies on the unique merits of the individual case. Therefore, while obtaining an EB2 NIW visa is not impossible, it is indeed subject to strict scrutiny and can be fairly challenging.
Step-by-Step Guide for the EB2 NIW Program
The application process for the EB2 NIW program involves a series of well-defined steps
- 1st Step
File an Immigrant Petition for Alien Worker (Form I-140) with the U.S. Citizenship and Immigration Services (USCIS). (The NIW applicant first will need to pay $700 or $2500 extra in case of premium processing to file Form I-140. Once I-140 is approved, the path forward will vary depending on where the applicant is living.)
- 2nd Step
Provide evidence demonstrating your advanced degree or exceptional ability, and how your proposed endeavor is in the national interest.
- 3rd Step
Wait till the visa bulletin becomes current for your country of origin.
- 4th Step
Once the I-140 petition is approved, depending on your location and visa availability, either file an Adjustment of Status application (Form I-485) with USCIS, or apply for an immigrant visa at a U.S. embassy or consulate.
What are the Advantages of the EB2 NIW Green Card?
The EB2 NIW program offers several distinct advantages. Most notably, it relieves the applicant from the obligation of having a job offer and undergoing the labor certification process. This provision substantially expedites the green card process and offers more flexibility for the applicant.
While the EB2 NIW program may seem like an ideal choice for many, it’s important to remember that immigration law is complex and constantly evolving. It is highly recommended to seek professional advice to navigate this process successfully and to clarify any doubts or concerns.
In the realm of immigration, knowledge indeed equals power. A firm understanding of the EB2 NIW program’s intricacies can help turn the dream of living and working in the United States into a reality.
What are the Differences between EB2 NIW and EB1A?
| Aspect | EB2 NIW | EB1A |
|---|---|---|
| Eligibility | Advanced degree or exceptional ability in their field. | Extraordinary ability in sciences, arts, business, education, or athletics. |
| National Interest Requirement | Must demonstrate that the proposed endeavor benefits the national interest of the U.S. | No requirement for national interest. |
| Job Offer | Not required. Self-petition allowed. | Not required. Self-petition allowed. |
| Labor Certification | Not required. | Not required. |
| Evidence | Must show advanced degree or exceptional ability and demonstrate national interest benefit. | Must show sustained national or international acclaim with extensive documentation of achievements. |
| Field of Focus | Professionals with advanced degrees or exceptional ability. | Individuals with extraordinary ability. |
| Process | Petition filed with USCIS with supporting evidence and self-petition allowed. | Petition filed with USCIS with supporting documentation and self-petition allowed. |
| Suitability | Suitable for professionals and individuals with exceptional ability. | Suitable for individuals with extraordinary abilities recognized internationally. |
| Approval Criteria | Demonstrate proficiency in the field and substantial benefit to U.S. national interest. | Demonstrate extraordinary ability and sustained acclaim. |
Frequently Asked Questions
While your EB-2 National Interest Waiver (NIW) is pending, it is crucial to maintain your current nonimmigrant status. This is because the NIW process can take a significant amount of time, and there’s no guarantee of approval. The U.S. immigration law requires you to have a valid immigration status while in the U.S. If you are on an H-1B or F-1 visa when applying for your NIW, you must continue to maintain the terms of that status until your NIW application is approved and you transition to permanent resident status. This ensures that you do not fall ‘out of status’, which could lead to serious consequences, including deportation or future ineligibility for U.S. visas. It is advised to consult with an experienced immigration attorney for guidance on your specific circumstances.
The processing time for an EB2 NIW application varies depending on factors such as the workload of the processing center and the specifics of your case. The average processing time for Form I-140 (Immigrant Petition for Alien Worker) ranges from 4 to 9 months. Once the I-140 is approved, you will have to wait for the visa bulletin to become current. Afterward, the next process of adjusting status or applying for the visa can take anywhere from 6 to 30 months, depending on USCIS processing speed. It’s important to note that processing times are subject to change, and delays can occur.
Once your EB2 NIW petition is approved, the next step is to file for an Adjustment of Status (Form I-485) with USCIS or apply for an immigrant visa at a U.S. embassy or consulate. Processing the I-485 can take anywhere from 6 to 12 months on average, though processing times may vary based on case specifics and the USCIS workload. Always prepare for potential delays and plan accordingly.
The processing time for an EB2 NIW application generally does not vary by nationality but depends on factors such as the workload of the processing center and the individual case. However, for Indian and Chinese nationals, there may be prolonged waiting periods due to the annual Green Card limits and high demand. This phenomenon, called ‘retrogression,’ can lead to extended waiting periods even after the I-140 is approved.
A degree in a STEM field can strengthen your EB-2 National Interest Waiver (NIW) application but is not a requirement. The primary criteria for NIW applicants are that their work is of national interest, they are well-positioned to advance their proposed endeavor, and waiving the job offer and labor certification is beneficial to the U.S. Applicants from various disciplines can qualify, and the strength of the evidence and the potential impact of the applicant’s work on the U.S. are key factors in the approval process.
Yes, entrepreneurs can apply for the EB-2 National Interest Waiver (NIW). USCIS acknowledges that entrepreneurs contribute to the national interest by driving innovation, job creation, and economic growth. Entrepreneurs must show that their business venture will significantly benefit the U.S. and meet the same NIW criteria: national interest, being well-positioned to advance the endeavor, and demonstrating that waiving the job offer and labor certification would be advantageous to the U.S.
The processing time for both EB2 NIW and EB1A applications can vary significantly, depending on individual case specifics and the processing center’s workload. Generally, the EB2 NIW has a faster processing time since it waives the labor certification requirement. However, the EB1A, which is designed for individuals with extraordinary ability, doesn’t require a job offer and may also expedite the process. It’s crucial to remember that each case is unique, and processing times can fluctuate.
Accuracy is essential in the EB2 NIW application process to enhance your chances of approval. Given the complexity of the process, it is highly recommended to work with an experienced immigration attorney. An attorney can guide you through each step, ensure that all documentation is correctly prepared, and advocate on your behalf. A small mistake could lead to significant delays or even a denial.
Yes, the spouse and unmarried children under the age of 21 of the principal EB-2 visa holder can also apply for Green Cards.
