EB-2 with a National Interest Waiver (NIW): A Guide to a Green Card

I. EB-2 with National Interest Waiver (NIW) Introduction

The EB-2 with National Interest Waiver (NIW) is a popular immigration option for foreign nationals seeking permanent residence in the United States. This category allows individuals to bypass the traditional labor certification process and job offer requirements, and instead demonstrate that their work is of substantial merit and national importance. Foreign nationals have shown significant interest in this category because of the potential for faster green card processing and the ability to self-petition.

However, the application process for the EB-2 with NIW (also called EB-2 NIW) category can be complex and challenging, with a high standard of proof required to establish eligibility. This guide summarizes this category, including its requirements, advantages, and common challenges faced by foreign nationals. This guide offers tips for a successful application, and answers frequently asked questions about the category. By providing this information, we hope to assist foreign nationals seeking to navigate the EB-2 with NIW application process and increase their chances of a successful outcome.

II. Overview of EB-2 Visa

The EB-2 visa is an employment-based immigration visa (Employment-Based Second Preference) that is reserved for individuals who possess advanced degrees or exceptional ability in their field. The form I-140 is used to apply for this visa. In order to qualify for this category, applicants must meet certain requirements. These requirements include:

Possession of an advanced degree: This refers to a degree beyond a bachelor’s degree, such as a master’s degree or a Ph.D. Alternatively, applicants may qualify if they possess a bachelor’s degree and have at least five years of progressive experience in their field.

Exceptional ability: If an applicant does not have an advanced degree, they may still qualify for this category if they can show exceptional ability in their field. This may include evidence of significant achievements, such as awards or publications, that show the applicant has risen to the top of their field.

Job offer: Applicants must have a job offer from a U.S. employer that will sponsor their application. The employer must file a labor certification with the Department of Labor to show that there are no qualified U.S. workers available to fill the position.

A. Differences between EB-1 and EB-2 

The EB-1 visa is another employment-based visa category that is reserved for individuals who possess extraordinary ability, are outstanding professors or researchers, or are multinational executives or managers. Both EB-1 and EB-2 lead to a green card when the priority date is current. While the requirements for these differ, there are some important differences between the two categories.

One key difference is that the EB-1 is considered a priority category, so there are typically shorter processing times for EB-1 than for EB-2. EB-1 applicants are not required to have a job offer from a U.S. employer, so they may be able to self-petition for their visa. You can find more information about the EB-1A application process here.

B. Advantages of EB-2

There are some advantages to this category that may make it a better fit for some applicants. For example, the job offer requirement means that EB-2 applicants may have an easier time securing a visa, since they already have a U.S. employer sponsoring their application.

The eligibility requirements for EB-2 visas are more flexible than those for EB-1 visas, so more individuals may qualify for this category. This may be important for foreign nationals, who may face more stringent requirements for other categories. Finally, the EB-2 visa may be a good fit for individuals who do not meet the exceptional ability or extraordinary ability requirements for other visa categories, but who still possess advanced degrees or significant experience in their field.

III. Overview of National Interest Waiver (NIW)

A. Definition of National Interest Waiver (NIW)

The National Interest Waiver (NIW) is a petition that allows foreign employees to obtain a green card without a job offer or labor certification. Instead, applicants for an NIW must show their presence in the United States would be in the national interest. This means that they must show that their endeavor must have substantial merit and national importance and that it would benefit the United States to waive the normal requirements of a job offer and labor certification.

B. National interest waiver (NIW) requirements

To be eligible for an NIW, applicants must meet certain requirements. These requirements include:

1. The proposed endeavor must have substantial merit and national importance. USCIS considers the potential impact of the applicant’s work on the United States as a whole, rather than on a specific geographic location or industry. The applicant must show that their work is of “substantial merit” and that it will contribute to the national interest.
2. The applicant is well-positioned to advance the proposed endeavor. The applicant must show that they have the education, skills, knowledge, and record of success to carry out the proposed endeavor successfully. USCIS also considers any relevant licenses, certifications, or other credentials.
3. On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. The applicant must show that waiving the job offer and labor certification requirements would be in the national interest. The USCIS considers a range of factors, including but not limited to whether the applicant’s work is of national importance, whether the applicant has the potential for future contributions, and whether the national interest would be adversely affected by requiring a job offer and labor certification.

C. Advantages of NIW

One of the major advantages of the NIW is that it allows foreign employees to get a green card without a job offer or labor certification. This means that they can have greater flexibility in their work and career choices, and they are not tied to a specific employer or job.

The NIW can be a good option for individuals who may not meet the more stringent requirements of other visa categories, such as the EB-1 or EB-2 visas. For example, if an individual does not have a job offer, they may not apply for an EB-1 visa, which requires a job offer or evidence of self-employment. Similarly, if an individual does not have an advanced degree or exceptional ability, they may not qualify for an EB-2 visa.

Finally, the NIW can be a good fit for individuals whose work is in the national interest of the United States, but who may not be able to secure a job offer or labor certification. For example, if an individual’s work is in a cutting-edge or emerging field, there may not be many employers in the United States who are familiar with their work or able to sponsor their visa. The NIW allows these individuals to come to the United States and contribute their expertise to the national interest.

D. How long does it take to put together an NIW petition?

The time required to put together an NIW petition can vary depending on several factors, including the applicant’s familiarity with the process, the availability of supporting documents, the complexity of the case, and whether the applicant chooses premium processing. Here are some general considerations for the different stages involved:

1. Research and Strategy Development: This phase involves understanding the requirements of the NIW petition, gathering evidence, and developing a strong case strategy. It may take several weeks to thoroughly research and strategize the application.
2. Documentation Gathering: The applicant will need to collect various documents to support the application, such as reference letters, evidence of the applicant’s qualifications, educational credentials (official academic record), publications, awards, and any other relevant materials. The time required for this step depends on the availability of the documents and may range from a few weeks to several months.
3. Recommendation Letters: Gathering recommendation letters from experts in the applicant’s field who can attest to contributions and national interest can also take time. The applicant should allocate sufficient time to contact potential recommenders, provide them with necessary information, and allow them enough time to write strong letters on the applicant’s behalf.
4. Drafting the Petition: Writing the actual petition, including the cover letter, statement of qualifications, and the supporting documentation, can take a significant amount of time. The length and complexity of the case may influence the time needed for this step, but it can typically take a few weeks to a few months.
5. Review and Proofreading: After drafting the petition, it is important to review and proofread the entire application thoroughly to ensure accuracy, clarity, and consistency. This step may take a few days to a week.
6. Finalization and Submission: Once the application is complete, you will need to assemble the final package, organize the supporting documents, and complete any required forms. 

It’s important to note that the above timeline is a general estimate and can vary depending on individual circumstances. It is advisable to start the process well in advance to allow sufficient time for each stage and to account for any unforeseen delays. 

IV. Tips on Filing a Successful NIW Visa Application

Submitting a successful NIW application requires careful preparation and attention to detail. Here are some tips to help increase the chances of success:

1. Understand the eligibility requirements: Make sure you fully understand the eligibility requirements for the EB-2 with NIW category and the specific criteria. This will help you tailor your application to highlight how your work meets these requirements.
2. Prepare a strong personal statement: A compelling personal statement can help show why your work is of national importance and why you are well-positioned to advance your proposed endeavor. Your personal statement should also explain how your work aligns with the national interest and how it differs from others in your field.
3. Gather strong letters of recommendation: Letters of recommendation from experts in your field can help show the merit and national importance of your work. These letters should provide specific examples of your contributions to your field and explain how your work has advanced the field and how it benefits the United States as a whole.
4. Provide supporting evidence: Provide as much supporting evidence as possible to show your qualifications and accomplishments. This can include publications, awards, patents, and any other evidence of your contributions to your field.
5. Work with an experienced immigration attorney: An experienced immigration attorney can help guide you through the application process and ensure that your application is complete and free of errors or inconsistencies.
6. Prepare for potential challenges: Be prepared to address any potential challenges that may arise during the application process, such as requests for additional evidence or requests for an interview with USCIS. An experienced immigration attorney can help you prepare for these challenges and respond appropriately.

By following these tips and working with an experienced immigration attorney, you can increase the chances of a successful EB-2 with NIW application.

V. Conclusion for filing an EB-2 NIW Application

The EB-2 with National Interest Waiver (NIW) is a valuable immigration option for foreign nationals seeking permanent residence in the United States. This category offers a number of advantages over other immigration options, including the ability to self-petition and bypass the labor certification process. However, the application process can be complex and challenging, requiring a high standard of proof to establish eligibility.

By understanding the eligibility requirements, common challenges, and strategies for a successful application, foreign nationals can increase their chances of obtaining an EB-2 with NIW and achieving their immigration goals. It is important to consult with an experienced immigration attorney to guide you through the application process and address any specific questions or concerns.

Overall, the EB-2 with NIW provides a promising opportunity for foreign nationals to pursue their professional and personal goals in the United States. With careful preparation and guidance, applicants can successfully navigate the application process and obtain permanent residency in the United States. It is important to consult with an immigration lawyer before proceeding.

For more information, visit USCIS’s page on EB-2 with an NIW.