When it comes to understanding what an EB-2 National Interest Waiver (“NIW”) visa is, you must first understand the basics of United States immigration law. Immigration laws are the set of federal laws that regulate how a foreign national may qualify for a visa or green card. Immigration laws also deal with the circumstances under which an individual can be deported.
Importantly, there are many different kinds of temporary and permanent visas that an individual may apply for prior to entering the United States. As such, there is generally a visa that is available that fits your personal situation and the reason that you are seeking entry in the United States.
One such visa that a foreign national seeking to live and work in the United States may apply for is the EB-2 NIW visa. The EB-2 NIW visa is a type of employment-based visa. However, an employment based visa generally requires a job offer and an employer sponsor. The EB-2 NIW has fewer requirements.
The EB-2 NIW visa is an employment based visa that provides a pathway for foreign nationals to work and live within the United States and have a pathway to lawful permanent residency. The following article discusses the basics of an EB-2 NIW visa, what an EB-2 NIW does, as well as the process for applying for an EB-2 NIW visa.
What Is an EB-2 Visa?
According to United States Citizenship and Immigration Services (“USCIS”), an EB-2 visa is an employment-based immigrant visa category that allows foreign nationals to live and work in the United States permanently.
Specifically, an EB-2 visa is an employment-based, second-preference visa which is for individuals who are members of the professions holding advanced degrees or who have exceptional ability in the sciences, arts, or business.
USCIS further breaks down EB-2 visas into t two main categories:
- Advanced Degree: This category is for persons whose job requires an advanced degree (i.e. beyond a bachelor’s degree) or its equivalent
- Applicants under the advanced degree category must possess such a degree or a bachelor’s degree plus at least five years of progressive work experience in the field
- Exceptional Ability: This EB-2 subcategory is for individuals who have a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business
- Applicants under this subcategory must meet at least three of the criteria specified by USCIS, which include:
- Official academic record showing the individual possesses a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to their area of exceptional ability
- Letters from current or former employers documenting at least 10 years of full-time experience in their occupation
- A license to practice their profession or certification for their profession or occupation
- Evidence that they have commanded a salary or other remuneration for services that demonstrates their exceptional ability
- Membership in a professional association(s)
- Recognition for their achievements and significant contributions to their industry or field by your peers, government entities, professional or business organizations
- Other comparable evidence of eligibility is also acceptable.
Under the exceptional ability subcategory, simply meeting three of the six criteria does not automatically qualify the applicant as having exceptional ability. USCIS will still make that determination based on the entirety of the application submitted and the evidence that was provided by the applicant.
In addition to the above requirements, most EB-2 visa applications require a labor certification from the Department of Labor (“DOL”), and the employer must demonstrate their ability to pay the offered wage.
However, individuals may request a waiver of the above additional requirement in the national interest through a petition filed with USCIS. Because the national interest waiver waives the job offer, the applicant does not need to demonstrate an employer’s ability to pay a wage.
What Are the Requirements for the EB-2 NIW Visa?
As mentioned above, the EB-2 NIW is a more specific form of an EB-2 visa. The EB-2 NIW visa allows applicants whose work would benefit the national interest of the United States to avoid finding an employer willing to sponsor them. In doing so, the applicant is able to bypass the DOL labor certification requirements.
However, not everyone is eligible for an EB-2 NIW visa. Specific requirements must first be met by the applicant before they are allowed to submit an EB-2 NIW visa application.
In order to apply for an EB-2 visa with a National Interest Waiver (NIW), applicants need to meet specific requirements set by USCIS, including:
- Eligibility Requirements: They must be eligible for an EB-2 visa, by either holding an advanced degree (master’s or higher) or demonstrating exceptional ability in their field
- National Interest Waiver Criteria: Applicants must then satisfy the three-prong test established in the Matter of Dhanasar, which includes:
- Substantial Merit and National Importance: The applicant’s proposed work must have significant merit and national importance
- Well-Positioned to Advance the Proposed Endeavor: The applicant must be well-positioned to advance their proposed work
- Benefit to the United States: It must be beneficial to the United States to waive the job offer and labor certification requirements for the applicant
How Do I Satisfy the Substantial Merit and National Importance Prong?
In order to demonstrate that your proposed work has substantial merit and national importance, you will need to explain how your work may impact social welfare, advance scientific research, grow cultural and artistic communities, or otherwise benefit national or local economies.
You will need to provide evidence supporting your qualifications and the national interest of your work, by providing academic records, letters from employers, professional licenses, and evidence of recognition in your field, to name a few.
How Do I Satisfy the Well Positioned Prong?
The first prong focuses on the work and its impact on the United States. On the other hand, the second prong focuses on you.
USCIS will consider several factors in evaluating your relative position, including:
- Your educational background and work experienced
- The details of your work proposal
- Any progress that you have already made in your work proposal
Although it is not necessary to convince USCIS that you’re more likely than not going to achieve every stated goal in your proposal, your proposal should still be well supported by evidence of your past success and personal background.
How Do I Satisfy the Beneficial to the United States Prong?
This final prong examines whether or not waiving the labor certification requirement is beneficial to the United States. Generally speaking, requiring labor certification and a job offer is intended to protect United States workers from losing out on jobs and opportunities.
In proving your waiver would benefit the United States, you may wish to discuss:
- The unique benefits that you as an individual offer the United States
- Any evidence that relates your work proposal with an urgent interest in your field, such as increasing United States competitiveness abroad
- Any urgent health or safety issues that require your expertise
- The fact that your proposal actually results in revenue and the creation of jobs for United States workers
How Do I Apply for an EB-2 NIW Visa?
Unlike other employment-based visas, you can actually self-petition for an NIW by using Form I-140, “Immigrant Petition for Alien Worker.”
The self-petition process for an EB-2 NIW visa typically goes as follows:
- Determine Eligibility: First you must ensure you meet the basic requirements for an EB-2 visa, and that your work meets the criteria for a National Interest Waiver
- Gather Documentation: You will then need to collect all necessary documents to support your application, including:
- Proof of your advanced degree or exceptional ability
- Evidence that your work has substantial merit and national importance
- Documentation showing you are well-positioned to advance your proposed endeavor
- Proof that waiving the job offer and labor certification requirements would benefit the United States
- Prepare Form I-140: You then need to obtain and complete Form I-140, Immigrant Petition for Alien Worker
- Submit the Petition: After completing the Form I-140, you then can file the Form, along with your supporting documents with USCIS.
- You can file this form online or by mail
- Pay the Filing Fee: You also need to pay the required filing fee for Form I-140, which as of 2024 is $715.
- You can check the USCIS website for the most current fee information
- Review Process: USCIS will then review your petition and may request additional information or evidence
- Receive a Decision: After some time has passed, USCIS will make a decision and you will be notified whether or not you have been approved or denied
- If approved, you can proceed with the next steps in the immigration process, such as adjusting your status if you are already in the United States or applying for an immigrant visa if you are outside the United States
Do I Need a Lawyer for Help With an EB-2 NIW Visa?
As can be seen, the process for applying for and obtaining an EB-2 NIW visa is not always straightforward. As such, if you have any questions regarding the EB-2 NIW visa application process, it is in your best interest to consult with a local work visa lawyer.
LegalMatch can assist you in setting up an initial consultation with an experienced immigration attorney in your area. They can help inform you of the process of obtaining the EB-2 NIW visa. Additionally, they can help you determine if you are eligible for the NIW and guide you through the application process. Finally, a lawyer will also be able to represent you in court, as needed, should any other legal issues arise or your application be denied and require an appeal.
