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Important Information About EB-2 National Interest Waivers (NIW)

To be eligible for an employment-based visa in the second preference (EB-2), a foreign national must be a member of the profession holding an advanced degree or one who has exceptional ability. Also, EB-2s require a specific job offer and labor certification process (PERM). However, a foreign national may seek a waiver of this job offer and labor certification by establishing that his/her admission to permanent residence would be in the ” interest” of United States via an EB-2 NIW petition.

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 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 his EB-2 NIW petition and there is no labor certification requirement 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.

What qualifies as an advanced degree?

A bachelor degree plus 5 years work experience in the field. Proof of advanced degree includes official academic record showing a U.S. advanced degree (above bachelors) or foreign equivalent degree or U.S. bachelor degree or a foreign equivalent degree plus letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the field requested.

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.

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

Yes; in conclusion, the event the above categories are inapplicable to an applicant, USCIS may consider appropriate comparable evidence like expert opinion letters to satisfy the exceptional ability in the requested field.

Who can apply for EB-2 NIW?

A NIW is available only in the EB-2 category. In addition, they are granted to only those who satisfy the minimum “entry” requirements for the EB-2 classification.

What is the meaning of National Interest Waiver?

For instance, in this category, the foreign national is seeking that USCIS waives the labor certification process and the necessity of having a job offer. Therefore, such foreign national possesses exceptional ability that will substantially benefit the economy, cultural or education interests or welfare of the United States.

How to satisfy the NIW requirements?

  1. A foreign national who is qualified under EB-2 and
  2. A foreign national who passes the three-prong test in Matter of Dhanasar decision:
    • proposed endeavor is of substantial merit and national importance;
    • well positioned to advance the proposed endeavor; and
    • On balance it would be beneficial to waive the job requirement for the foreign national.

Is applying under EB-2 NIW beneficial?

Yes, because:

  • No labor certification.
  • No job offers required.
  • Self-petition is allowed.
  • Visa dates are current except for citizens of China and India.

What Forms to submit for EB-2 NIW?

EB-2 NIWs requires the filing of Form I-140.

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.