EB-2 NIW National Interest Waiver
For individuals with an advanced degree or exceptional ability who can demonstrate a substantial positive impact to the U.S.
Updated: June 2024
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 doing important work that will benefit the national interest of the United States? If the answer is yes, you may be eligible for the EB2 NIW National Interest Waiver program. The Employment-Based Second Preference National Interest Waiver (EB2 NIW) program is an integral part of the United States immigration framework, the EB2 NIW program offers a path to lawful permanent residency for individuals with advanced degrees or exceptional ability, bypassing the rigorous labor certification process. This article aims to shed light on the EB2 NIW program by dissecting its eligibility criteria, application process, timeline, cost, 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
In order to be eligible for an NIW petition, you must either have an "advanced degree" or "exceptional ability" in the sciences, arts or business.
An advanced degree means a Master's or a PhD, JD, MD, etc. Short of that, a Four year's bachelor's degree plus five years of progressive work experience would also qualify.
Exceptional ability is a bit more complex to prove. Be prepared to show you qualify for 3 of the following criteria:
Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
Letters documenting at least 10 years of full-time experience in your occupation
A license to practice your profession or certification for your profession or occupation
Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
Membership in a professional association(s)
Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
Other comparable evidence of eligibility is also acceptable.
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 3 National Interest Waiver criteria below in order to demonstrate that it is in the national interest that USCIS waive the requirement of a job offer, and thus the 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; and
on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.
How does the EB-2 NIW process work?
Your employer or attorney must file a Form I-140, Petition for Alien Worker. If you are filing the NIW, you may also “self-petition,” that is to file the I-140 on your own behalf. You must also file a partially filled out copy of the new version of ETA9089 as part of the NIW filing process. In addition to the forms, it is critical to prepare a thorough petition explaining how you meet the regulatory criteria for EB2 NIW. Work with an experienced attorney to come up with a strategy for your case.
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:
1. File an Immigrant Petition for Alien Worker (Form I-140) with the U.S. Citizenship and Immigration Services (USCIS).
2. Provide evidence demonstrating your advanced degree or exceptional ability, and how your proposed endeavor is in the national interest.
4. Wait till the visa bulletin to become current for your country of origin.
3. 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?
Both the EB-2 National Interest Waiver (NIW) and the EB1A are immigrant visa categories that allow foreign nationals to apply for U.S. permanent residency without a job offer. However, they cater to different types of applicants and have varying eligibility criteria.
The EB2 NIW is suitable for professionals with advanced degrees or exceptional ability in their field, with the added condition that their proposed endeavor should be of national interest to the U.S. While the EB2 NIW does not require a job offer or labor certification, it does require a demonstration of the applicant's significant proficiency in their field of expertise and a substantial benefit to the U.S. from their proposed endeavor.
On the other hand, the EB-1A category is specifically designed for foreign nationals with extraordinary ability in the sciences, arts, education, business, or athletics. This category requires the applicant to demonstrate sustained national or international acclaim, with their achievements recognized through extensive documentation. Unlike the EB2 NIW, the EB-1A does not require the applicant's endeavor to be of U.S. national interest.
In summary, while both categories offer the advantage of not being tied to a specific job offer, the EB-1A is geared towards individuals of extraordinary ability and does not tie the application to a specific national interest requirement, as is the case with the EB2 NIW.
Unlike many other employment-based visa categories, the EB2 NIW category does not necessitate a job offer or a sponsoring employer in the U.S. This is one of the unique factors that sets this category apart. Therefore, individuals can self-petition, meaning they apply on their own behalf, providing evidence to demonstrate their advanced degree or exceptional ability, and how their proposed endeavor is in the national interest of the U.S. However, despite not requiring a sponsor, the EB2 NIW category has a stringent set of eligibility criteria that applicants must meet, and therefore, professional guidance from an experienced immigration attorney is highly recommended to navigate this complex process.
What Should You Do While You Wait —Maintaining Nonimmigrant Status While NIW is Pending
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, for example, on an H-1B or F-1 visa when you apply for your NIW, you should continue to maintain the terms of that status until your NIW application has been approved and you've completed the transition to permanent resident status. By doing so, you protect yourself from the risk of falling 'out of status', which could lead to serious immigration consequences, including deportation or future ineligibility for U.S. visas. As always, it's recommended to consult with an experienced immigration attorney to understand your specific circumstances.
Timeframe for EB2 NIW Approval
The processing time for an EB2 NIW application can vary significantly depending on a number of factors, including the workload of the processing center and the specifics of the individual case. As per the U.S. Citizenship and Immigration Services (USCIS), the average processing time for an Immigrant Petition for Alien Worker (Form I-140), which is the initial step of the EB2 NIW application process, can range anywhere from 4 to 9 months. Once the I-140 is approved, you’ll need to wait for the visa bulletin to become current. The timeline for the visa bulletin to be current differs for every country. Check the lastest update on Visa Bulletin to find out your proximate wait time. Lastly, the subsequent process of adjusting status or applying for the visa can take anywhere from 6 months to 30 months, depending on USCIS processing speed.
It's important to note that each case is unique and processing times can change without notice. Therefore, it's always advisable to plan accordingly and consider potential delays when applying for the EB2 NIW
In comparing the EB-2 National Interest Waiver (NIW) with the traditional EB-2 PERM Labor Certification route, one of the most notable differences is the timeline. The EB2 NIW generally has a faster processing time due to the waiver of the PERM Labor Certification requirement, a significant step in the EB-2 process. The PERM labor certification involves a test of the labor market to prove that there are no qualified U.S. workers available for the position, a process that can take several months or even a year. By eliminating this step, the EB2 NIW can potentially save a significant amount of time in the green card process. However, the total processing time for both EB-2 routes can still vary greatly depending on case specifics and the current workload of USCIS. Therefore, while the EB2 NIW can be quicker, there are many factors at play, and each individual applicant’s case can differ.
How long does it take to get the EB2 NIW?
Following the approval of the EB2 NIW, the next stage involves filing the Adjustment of Status application (Form I-485) with USCIS or applying for an immigrant visa at a U.S. embassy or consulate, depending on your location and visa availability. The processing time for the I-485 form varies according to numerous factors such as the specific case details and the current workload of USCIS. On average, it can take anywhere from 6 to 12 months for the I-485 to be processed and approved. However, these are average timelines and actual processing times can be shorter or longer. It's crucial to remember that each case is unique, and processing times can change without notice. Consequently, applicants should always plan and prepare for potential delays in the process.
The processing time for an EB-2 National Interest Waiver (NIW) application does not vary by nationality. It primarily depends on the workload of the processing center and the specifics of the individual case. The average processing time for an Immigrant Petition for Alien Worker (Form I-140), the first part of the EB2 NIW application process, ranges from 4 to 9 months. Following the approval of the I-140, the subsequent step of adjusting status or applying for the visa typically takes an additional 6 months to a year.
However, for Indian nationals specifically, there may be a prolonged waiting period due to the annual limit on the number of Green Cards issued per country and the high demand. This phenomenon, often referred to as 'retrogression', can result in an extended waiting period, potentially several years, before an immigrant visa number becomes available, even after the I-140 has been approved.
It's essential to note that these timelines are average estimates, and the actual processing times may vary. Each case is unique and processing times can change without notice. Therefore, applicants are advised to plan accordingly and anticipate potential delays when applying for an EB2 NIW visa.
The processing time for an EB-2 National Interest Waiver (NIW) application is generally not determined by nationality but primarily depends on the workload of the processing center and the specifics of the individual case. The average processing time for an Immigrant Petition for Alien Worker (Form I-140), the first part of the EB2 NIW application process, ranges from 4 to 9 months. Following the approval of the I-140, the subsequent step of adjusting status or applying for the visa typically takes an additional 6 months to a year.
However, for Chinese nationals specifically, there may be a prolonged waiting period due to the annual limit on the number of Green Cards issued per country and the high demand. This phenomenon, often referred to as 'retrogression', can result in an extended waiting period, potentially several years, before an immigrant visa number becomes available, even after the I-140 has been approved.
It's essential to note that these timelines are average estimates, and the actual processing times may vary. Each case is unique and processing times can change without notice. Therefore, applicants are advised to plan accordingly and anticipate potential delays when applying for an EB2 NIW visa.
While a degree in a STEM (Science, Technology, Engineering, and Mathematics) field can certainly strengthen an EB-2 National Interest Waiver (NIW) application, it is not an absolute requirement. The key criteria for an NIW petition involve demonstrating that the applicant's work is of national interest, they are well-positioned to advance their proposed endeavor, and it would be beneficial to the United States to waive the job offer and labor certification requirements. Applicants from a wide range of disciplines, including but not limited to STEM fields, can satisfy these criteria. It is important to note that the strength of the evidence provided and the potential impact of the applicant's work on the United States are critical factors in the adjudication process.
Yes, entrepreneurs can indeed apply for an EB-2 National Interest Waiver (NIW). The United States Citizenship and Immigration Services (USCIS) recognizes that entrepreneurs can serve the national interest by driving job creation, innovation, and economic growth. Therefore, an entrepreneur, or a self-employed individual with a significant ownership interest in their enterprise, may qualify for an NIW if they can demonstrate that their business venture will substantially benefit the U.S. nation. However, like all EB2 NIW applicants, entrepreneurs must meet the criteria of having their work be of national interest, showing that they are well-positioned to advance the proposed endeavor, and establishing that waiving the job offer and labor certification requirements would be beneficial to the U.S. As always, each case is unique, and applicants are advised to consult an immigration attorney to assess their specific circumstances.
The processing time of both EB2 NIW and EB1A can vary significantly, depending on a plethora of factors such as the specifics of the individual case, the workload of the processing center, and more. Typically, the EB2 NIW may have a faster processing time compared to the EB1A, primarily because it waives the labor certification process that could potentially lengthen the timeline. However, the EB1A category, meant for individuals with extraordinary ability, doesn't require a job offer, which can also expedite the process. It is important to remember that the processing time for each category can fluctuate based on USCIS workload and individual case complexities. Therefore, while on average the EB2 NIW might be quicker, it is not a hard and fast rule, and the processing time for each individual applicant can differ. Given the complexity of the immigration process, it is always advisable to seek professional advice to understand which category best suits your qualifications and circumstances.
Given the complexity of the EB2 NIW program, accuracy in the application process is paramount to enhance the chances of approval. An experienced immigration attorney can be instrumental in this process, guiding you through each step, ensuring all documentation is correctly prepared and submitted, and advocating on your behalf. Remember, every detail matters in immigration cases, and a minor oversight can result in significant delays or even a denial of your application. Therefore, while the task may seem daunting, with the right guidance and meticulous preparation, the dream of obtaining an EB2 NIW visa can indeed become a reality.
Choosing the right partner for your immigration journey is critical. At Xu Law Group, we guarantee an unparalleled experience centered around your unique needs. Our team of seasoned attorneys ensures that every detail of your EB-2 National Interest Waiver (NIW) application is meticulously addressed, providing you with the highest chances of success. By entrusting us with your case, you can worry less about the complexities of the immigration process and focus more on your future in the United States. The journey to your dream is one consultation away. Contact Xu Law Group today and take the first step towards securing your EB-2 NIW visa. Our team is ready to guide and support you every step of the way.
Can Family of EB-2 Visa Holders also Apply for Green Cards?
Yes, spouse and unmarried children under the age of 21 may accompany the principal applicant.
