Attorney
EB-2 National Interest Waiver (NIW):
The EB-2 National Interest Waiver (NIW) Visa is a highly sought-after U.S. immigrant visa designed for individuals with exceptional abilities or advanced degrees whose presence in the United States is deemed to be in the national interest. This pathway is tailored for professionals, researchers, entrepreneurs, and others who demonstrate a significant impact in their field and the potential to benefit the nation.
EB-2 Visa Requirements/Criteria
To qualify for the EB-2 NIW Visa, applicants must meet stringent criteria that validate their extraordinary abilities in their field or an advanced degree (master’s or higher). Demonstrating expertise and prominence in their area of specialization is crucial.
- Exceptional Ability or Advanced Degree Requirement: To qualify for the EB-2 NIW Visa, applicants must possess either an exceptional ability in their field or an advanced degree (master’s or higher). Demonstrating expertise and prominence in their area of specialization is crucial.
- National Interest Waiver (NIW): Unlike the traditional EB-2 Visa, the NIW allows applicants to bypass the Labor Certification process, streamlining the application. This waiver is granted when the applicant’s work is determined to be in the best interest of the United States.
- Demonstrating National Interest: Applicants must illustrate how their work significantly benefits the United States. This could be through contributions to the economy, education, health, culture, environment, or another field with national importance.
- No Requirement of Employer Sponsorship: One of the distinctive features of the NIW is that it does not require a job offer or employer sponsorship. Individuals can self-petition, giving them more flexibility and control over their immigration process.
- Fast-Track to Permanent Residency: Successful applicants under the EB-2 NIW Visa can proceed to apply for permanent residency (a green card) without the need for a sponsoring employer or the cumbersome labor certification process.
Showcasing Extraordinary Ability for the EB-2 Visa
Demonstrating extraordinary ability is a crucial aspect of obtaining an EB-2 Visa. Here’s a detailed description of how one can showcase their extraordinary ability for the EB-2 Visa application:
Highlight an impressive academic background, such as degrees from renowned institutions, academic awards, scholarships, or honors, to demonstrate exceptional ability and expertise in the chosen field.
Showcase a robust professional record with accomplishments, patents, publications, and projects that significantly contribute to the field and demonstrate extraordinary skills and expertise.
Present a portfolio of publications, articles, research papers, or book chapters authored or co-authored by the applicant, emphasizing the impact and importance of their contributions to the field.
Provide evidence of holding leadership positions, critical roles in projects, or being a key member of a team, illustrating the applicant’s significant influence and contribution within their professional setting.
Showcase recognition through awards, honors, prizes, or grants received from reputable organizations or institutions, indicating the high regard for the applicant’s expertise and contributions.
Include strong letters of recommendation from experts, peers, or renowned professionals in the field, attesting to the applicant’s extraordinary abilities, contributions, and potential to further the national interest.
Provide evidence of participation as a speaker, panelist, or presenter at conferences, symposia, or seminars, showcasing the applicant’s authority and influence in the field.
Demonstrate innovative work through patents, inventions, or intellectual property, highlighting the significance and impact of the applicant’s contributions on the field and society at large.
Showcase collaborations with esteemed institutions, organizations, or experts, indicating that the applicant’s work is valued and recognized at a broader level, further emphasizing their extraordinary ability.
Clearly articulate and demonstrate how the applicant’s expertise and work directly align with the national interest of the United States, emphasizing the benefits and positive impact on the nation.
Display active membership or association with prestigious professional organizations or societies within the field, reinforcing the applicant’s dedication and recognition in the professional community.
Include evidence of media coverage, interviews, or features about the applicant’s work, validating the recognition and widespread acknowledgment of their extraordinary ability.
Application Process
The EB-2 Visa process follows this process:
- Eligibility Assessment: Determine eligibility based on exceptional ability or advanced degree, assessing the potential to meet the criteria for a National Interest Waiver.
- Document Preparation: Compile a strong portfolio of evidence showcasing exceptional ability, contributions to the field, and the national interest value of your work.
- Form I-140 Petition: Submit Form I-140, Immigrant Petition for Alien Worker, providing supporting documentation and a well-crafted petition letter outlining your case for a National Interest Waiver.
- Adjudication and Decision: USCIS reviews the petition and supporting documents to determine eligibility for the National Interest Waiver. Upon approval, applicants can progress towards permanent residency.
EB-2 NIW Visa Benefits:
- Direct Path to Green Card: Successful applicants can move directly to the green card application process, bypassing the PERM labor certification and securing a faster path to permanent residency.
- Flexibility and Autonomy: The EB-2 NIW allows applicants to self-petition, giving them the freedom to choose their employment and professional endeavors in the U.S.
- Positive Economic Impact: By attracting top talent and encouraging innovation, the EB-2 NIW Visa contributes to the growth of various sectors, boosting the nation’s economic development.
- Opportunity for Innovators: The NIW Visa encourages innovators, researchers, and professionals to contribute their skills and knowledge to advance their respective fields and benefit the nation as a whole.
Unlock your potential and make a lasting impact in the United States with the EB-2 National Interest Waiver (NIW) Visa. Let our dedicated immigration team guide you through this transformative journey towards contributing to the national interest and securing a brighter future in the U.S.
Our EB-2 Visa Team
What is Considered Exceptional Ability?
The term exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. The initial evidence must include at least three of the following six types of evidence listed in the regulations:
- An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
- Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least 10 years of full-time experience in the occupation in which he or she is being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the beneficiary has commanded a salary or other remuneration for services that demonstrates exceptional ability. (To satisfy this criterion, the evidence must show that the beneficiary has commanded a salary or remuneration for services that is indicative of his or her claimed exceptional ability relative to others working in the field);
- Evidence of membership in professional associations; and
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
Source: https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2
Given the additional requirements for exceptional ability, aspiring applicants should target qualifying for an NIW through the advanced degree provision, if possible.
Prong #1 – Substantial merit & national importance
The first prong, substantial merit and national importance, focuses on the specific proposed endeavor that the foreign national proposes to undertake. Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016).
Let’s talk about what a proposed endeavor is. In layman’s terms, a proposed endeavor is a specific work (i.e, business, research, project, etc.) that you intend to engage in. The ideal scenario for you is to come up with a proposed endeavor that is sufficiently related to both your work experience AND your education.
Substantial merit and national importance both have very specific meanings as well. To keep it simple, substantial merit refers to whether there is inherent value in your endeavor. Substantial merit is fairly easy to prove – it can be shown in a wide range of areas, including business, entrepreneurship, science, technology, culture, health, or education, among others. National importance is more difficult to show – this generally refers to the potential of your specific project to impact the industry as a whole or otherwise benefit the U.S. at large.
Prong #2 – “Well Positioned” to advance the proposed endeavor
The second prong shifts the focus from the proposed endeavor to the foreign national. Matter of Dhanasar, 26 I&N Dec. 884, 890 (AAO 2016).
In evaluating whether the person is well positioned to advance the endeavor, USCIS considers factors including, but not limited to:
- The person’s education, skills, knowledge, and record of success in related or similar efforts;
- A model or plan that the person developed, or played a significant role in developing, for future activities related to the proposed endeavor;
- Any progress towards achieving the proposed endeavor;
- The interest or support garnered by the person from potential customers, users, investors, or other relevant entities or persons, and;
- Evidence of the person’s past achievements and corroborate projections related to the proposed endeavor.
Our goal is to ensure that you prepare as much evidence as possible to show USCIS that you are qualified to carry out your endeavor.
Prong #3 – ON BALANCE DISCRETIONARY EVIDENCE
The third and final prong requires the petitioner to demonstrate that the factors in favor of granting the waiver outweigh those that support the requirement of a job offer and thus a labor certification, which is intended to ensure that the admission of foreign workers will not adversely affect the job opportunities, wages, and working conditions of U.S. workers. Matter of Dhanasar, 26 I&N Dec. 884, 890 (AAO 2016).
In simple terms, we have to craft a strong argument for why you should be exempt from the usual job offer and labor certification processes. Here are some acceptable reasons:
- Urgency Matters: Is there an immediate need related to public health or safety that would make it crucial for you to bypass the usual process?
- Unique Skills: Are you bringing a skill or knowledge that’s beyond the basic requirements for your job? And is this uniqueness something that the regular process might overlook?
- Economic Benefits: Can your work lead to significant economic growth, like boosting the economy in a particular area?
- Job Creation: Will your efforts potentially create new jobs?
By focusing on these arguments, we can present a compelling case for your EB-2 NIW application. We’re here to help guide you through the process.
AFTER NIW (I-140) Approval – Consular Processing
If you are Abroad (Outside of the USA): CONSULAR PROCESS:
Consular Processing is a process used by the U.S. Department of State in which foreign nationals can apply for U.S. permanent residency (green card). This is usually done through a U.S. embassy or consulate abroad. During the process, an applicant must submit supporting documents to prove they are admissible to the United States (i.e., security checks), then attend an in-person interview. Once approved, the applicant will able to travel to and enter the United States with the issued visa.
AFTER NIW (I-140) Approval – Adjustment of status
If you are Within the United States (Physically Present): ADJUSTMENT OF STATUS.
Description: Adjustment of status is a process by which an individual in the United States can apply for lawful permanent resident status without having to return to their home country. If approved, the individual will become a permanent resident and receive a green card that gives them permission to live and work in the US indefinitely. It is VERY unlikely for you to have an interview with USCIS if you apply for adjustment of status.
Common Questions for EB-2 National Interest Waiver (NIW) Applications
Q: Can I apply for an EB-2 NIW if I am on an F-1 student visa or if I am outside of the USA?
A: Yes, you can. Being on an F-1 student visa or residing outside of the USA does not prohibit you from applying for an EB-2 NIW.
Q: I have never authored or published any articles in my field. Can I still qualify for an EB-2 NIW?
A: Yes. While having authored or published articles can strengthen your EB-2 NIW application, they are not a mandatory requirement for eligibility. The USCIS evaluates a combination of factors to determine if you can substantially benefit the United States. If you can demonstrate that your expertise and work are of “national interest,” you can still qualify even without publications.
Q: My company has offered to sponsor me for permanent residency as well. Why should I consider pursuing an EB-2 NIW?
A: The EB-2 NIW process is significantly faster than employer-sponsored routes done via labor certification. It also allows you to petition for yourself, giving you more control over the application process.
Q; What are my chances of EB-2 NIW Approval?
A: Approval rates vary from year-to-year. However, as of FY 2023, USCIS has approved approximately 84.6% of EB-2 NIW Applications. Source: https://www.uscis.gov/sites/default/files/document/data/I-140_FY23_Q1.pdf. Hiring a quality firm to assist in preparing and developing the proposed endeavor and supporting evidence can significantly increase the quality of your NIW application.
Q: How long will my EB-2 NIW process take to process?
A: It depends on whether one files via regular or premium processing. Regular processing, our cases are processed between 2.5 and 5 months, as of September 2023. Processing times will vary, so be sure to check current times online by visiting https://egov.uscis.gov/processing-times/. Many applicants choose to select premium processing – which takes 45 days to be adjudicated – to avoid the uncertainty of regular processing. Please note that premium processing comes with an additional cost of $2,500.