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EB-2 National Interest Waiver (NIW): For Advanced Degree Professionals and Professionals with Exceptional Ability

The National Interest Waiver (NIW) EB-2 visa is a United States immigration option that allows foreign nationals with exceptional abilities or advanced degrees to bypass the usual requirement of employer sponsorship in the employment-based second preference (EB-2) category. This immigrant visa pathway to legal permanent residency is granted to individuals who can demonstrate that their work is of significant benefit to the national interests of the United States. By obtaining a NIW EB-2 visa, qualified individuals can pursue employment or self-employment in fields such as the sciences, arts, business, or education, without needing a specific job offer or labor certification, thus promoting contributions to areas vital for the nation’s growth and development.

Common Questions And Answers About National Interest Waivers

Who qualifies for EB-2 NIW?

A foreign national who has an advanced degree or exceptional ability in sciences, arts or business.

What qualifies as an advanced degree?

An advanced degree is considered as a U.S. or foreign equivalent to a U.S. Master’s degree or higher. You may also qualify as an advanced degree professional by providing evidence that you have acquired a U.S. bachelor degree or a foreign equivalent plus 5 years of progressive, post-baccalaureate work experience in the field.

What’s exceptional ability?

Exceptional ability means a degree of expertise significantly above those ordinarily encountered in the sciences, arts or business. This can be satisfied by providing at least three of the following criteria:

  1. An official academic record showing that petitioner has a degree, diploma, certificate or similar award from a college, university, school, relating to the area of exceptional ability;
  2. Letters documenting at least 10 years of full-time experience in your occupation;
  3. A license to practice your profession or certification for your profession or occupation;
  4. Evidence that you have commanded a high salary;
  5. Membership in a professional association(s);
  6. Recognition for your achievements and significant contributions to your industry or field. For instance, by your peers, government entities, professional or business organizations.

What are the differences between Regular EB-2 and EB-2 NIW petitions?

In a normal EB-2 scenario, the foreign national, in addition to being an individual with an advanced degree or exceptional ability, must have this immigrant petition sponsored by a U.S employer. Such U.S. employer should make a job offer and go through the process of labor certification (PERM) prior to filing Form I-140. However, in the case of an EB-2 NIW, there is no need for sponsorship from any U.S. Employer. In other words, an individual with an advanced degree or exceptional ability can self-petition for the EB-2 NIW petition and avoid the labor certification requirement and need for employer sponsorship as well.

However, the EB-2 NIW is more difficult to obtain than a normal EB-2 because the petition not only needs to establish the foreign national’s qualifications under EB-2, but also establish that the qualifications satisfy the National Interest Waiver requirements (three-prong test in the Matter of Dhanasar decision). Our offices have successfully petitioned EB-2 NIW cases for professionals in various industries with a high approval rate.

Can any other evidence be considered in addition to the above listed six criteria for “exceptional ability”?

Yes, in the event that the above categories are inapplicable to an applicant, USCIS may consider appropriate comparable evidence to satisfy the exceptional ability in the requested field. There is no limitation on the type of comparable evidence that may be submitted, so we may help you utilize various forms of evidence to benefit your case. For instance, providing high quality evidence demonstrating one’s achievements in working with organizations that have high standards for participation, successfully obtaining venture capital funding from reputable sources, having work showcased in well known, public exhibitions, etc. may be presented as comparable exceptional ability evidence.

What is the meaning of National Interest Waiver?

The National Interest Waiver (NIW) is a provision within U.S. immigration law that allows certain foreign nationals, typically professionals with exceptional skills or expertise, to seek a waiver of the labor certification process and bypass the usual requirement of employer sponsorship for a work-based immigrant visa if their presence in the United States is deemed to be in the country’s national interest. This waiver is granted when the individual’s work is determined to significantly benefit the U.S. economy, national security, culture, educational or scientific advancement, or other relevant fields.

What are the NIW requirements?

1. A foreign national must be qualified under EB-2 (proving they meet the requirements for exceptional ability or advanced degree) and
2. A foreign national must pass the three-prong test in Matter of Dhanasar decision. We must effectively prove that:

  • The applicant’s proposed endeavor is of substantial merit and national importance;
  • The applicant is well positioned to advance the proposed endeavor; and
  • On balance it would be beneficial to waive the job requirement for the foreign national because of their valuable expertise.

Is applying under EB-2 NIW beneficial?

Yes, because:

  • Self-petition is allowed.
  • No labor certification.
  • No job offers required.
  • Locks in a priority date for individuals from countries with long wait times for green cards.
  • Allows H-1B to be extended indefinitely while waiting to submit green card application.
  • Allows H-4 visa holders to acquire employment authorization based on principal H-1B holder’s I-140 approval.

Does a labor certification need to be filed as well?

No, labor certifications are not required for an EB-2 NIW petition.

After my EB-2 petition is approved, when can I get my green card?

After receiving the I-140 approval, you will need to file the form I-485 to adjust your status to permanent resident or file the form DS-260 to apply for an immigrant visa abroad to get your green card. However, even if you receive the approval for your EB-2 case, you may still need to wait for some period of time before you can file the second part of your green card application. This depends on when your priority date becomes current according to the dates listed on the visa bulletin for people from your country. We can assist you in determining when you should file your green card applications. Finally, once you receive an approved I-485 or DS-260 and complete all required steps, you will officially become a legal permanent resident in the U.S. We will happily assist you or your family members in preparing your permanent residency application to obtain a green card once you are at this stage.

Can my family join me with green cards if my EB1C is approved?

Yes, your spouse and unmarried children under 21 can also get green cards based on your case if you are approved.

Contact Us To Learn If You Qualify for an EB-2 NIW

Please feel free to contact us for a free case evaluation. You can contact our San Jose office online, or call Fok Immigration Law at 408-606-8911 to schedule a free initial case evaluation. We would be happy to answer any questions regarding EB-2 NIW that you may have. We represent clients in the Bay Area, throughout California and the country.