EB-2 NIW: National Interest Waiver Immigrant Visa Category

The EB-2 National Interest Waiver (NIW) is a subcategory of the Employment-Based Second Preference (EB-2) immigrant visa, designed for highly skilled professionals who seek to work in the U.S. without needing employer sponsorship or a labor certification. This visa is ideal for those whose work has substantial merit and national importance.

Why Choose an EB-2 NIW?

No need for employer sponsorship
No requirement for a labor certification (PERM)
A direct path to a U.S. green card.

To qualify for an EB-2 NIW, petitioners must meet the EB-2 category eligibility criteria and the National Interest Waiver (NIW) criteria:

1. EB-2 General Eligibility

Applicants must qualify under one of the following:

Advanced Degree Professional: A U.S. master's degree (or foreign equivalent) OR a U.S. bachelor's degree plus at least five years of progressive experience in the field.
Person of Exceptional Ability: Demonstrate a level of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

1. Advanced Degree Professionals

To qualify under the advanced degree professional category, an applicant must meet the following requirements:

✅ Hold an advanced degree or foreign equivalent

The applicant must have a U.S. master’s degree (or higher) or a foreign equivalent.
Alternatively, a U.S. bachelor’s degree (or foreign equivalent) plus at least five years of progressive experience in the field is considered equivalent to a master’s degree.

✅ The job must require an advanced degree

The position being applied for must require an advanced degree as a minimum qualification.
This must be supported by industry standards or specific employer requirements.

🔹 Example:
An applicant with a Master’s in Engineering applying for an engineering management role that requires a master's degree would qualify.
However, a Ph.D. in Chemistry applying for a bakery business would not qualify because the job does not require an advanced degree.

✅ The applicant must meet all job requirements at the time of filing

The petitioner must demonstrate that the applicant met all education and experience requirements at the time the petition was filed.

🔹 Important Considerations:

If an applicant does not have at least a U.S. bachelor's degree (or foreign equivalent), they are ineligible for the advanced degree category.
Progressive experience means that the applicant’s experience must show increasing complexity, responsibility, and knowledge over time.

2. PERSON OF Exceptional Ability

An applicant may qualify under the exceptional ability standard if they can demonstrate that they have a level of expertise that is significantly above the ordinary in their field.

To qualify, the applicant must prove:

✅ Exceptional ability in the sciences, arts, or business
✅ Their work will substantially benefit the U.S. economy, culture, education, or welfare

Applicants must meet at least three of the following six criteria:

1️⃣ Official academic record showing a degree, diploma, or certificate in the area of exceptional ability.
2️⃣ Letters from past employers proving at least 10 years of full-time experience in the field.
3️⃣ License or certification to practice the profession.
4️⃣ Evidence of high salary or significant remuneration for services, proving exceptional ability.
5️⃣ Membership in professional associations that require outstanding achievements for admission.
6️⃣ Recognition for achievements and contributions from peers, government entities, or professional organizations.

🔹 Comparable Evidence:
If the applicant's occupation does not readily fit the listed criteria, they may submit comparable evidence to establish eligibility.

USCIS evaluates exceptional ability petitions through a two-step evidentiary review:

Step 1: Meeting the Regulatory Criteria

The officer reviews whether the applicant meets at least three of the six listed criteria.
Evidence must be credible and persuasive, demonstrating objective proof of exceptional ability.

Step 2: Final Merits Determination

USCIS conducts a holistic review of the evidence.
Even if an applicant meets three criteria, USCIS must be convinced that the applicant truly has exceptional ability.
Factors such as prestige, impact, and industry recognition play a significant role.

2. National Interest Waiver (NIW) Criteria

USCIS may grant a National Interest Waiver as a matter of discretion if the petitioner demonstrates eligibility by a preponderance of the evidence, based on the following three-pronged test set forth in Matter of Dhanasar:

1️⃣ The person’s proposed endeavor has both substantial merit and national importance.
2️⃣ The person is well-positioned to advance the proposed endeavor.
3️⃣ On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

The following sections explain each prong in detail and outline the type of evidence needed to strengthen an EB-2 NIW petition.Unlike a traditional EB-2 petition, the NIW waives the job offer and labor certification requirement if the applicant can satisfy the three-pronged test set forth in Matter of Dhanasar:

Prong 1: Substantial Merit and National Importance

The applicant’s proposed work must have substantial merit in fields such as business, science, technology, health, culture, or education.
The work should have national importance, meaning it impacts a field or industry beyond just benefiting a specific employer.

✅ Examples of Work with National Importance:

Developing innovative medical technologies or life-saving treatments.
Conducting groundbreaking research in STEM fields, particularly in critical and emerging technologies.
Launching sustainability initiatives or leading efforts in environmental protection.
Addressing national security concerns through technology, policy, or intelligence.

❌ Work That May Not Qualify:

Small business operations with limited impact beyond local communities.
Professions that are important only to a specific employer rather than a broader industry.

📌 Key Tip: Clearly articulate how your work has a wider impact beyond your employer. Supporting evidence such as media coverage, expert letters, patents, or policy contributions can help demonstrate this.

Prong 2: Well-Positioned to Advance the Endeavor

Applicants must prove that they have the skills, experience, education, and resources to advance their proposed endeavor.

✅ Evidence to Support This Prong:

Degrees, certifications, or licenses in the relevant field.
Patents, publications, or research citations showcasing contributions to the industry.
Awards or recognitions that validate professional expertise.
Industry leadership roles or advisory positions in professional organizations.
Letters of support from government agencies, industry leaders, or influential professionals in the field.

📌 Key Tip: Even if the proposed endeavor is innovative or has not yet been fully realized, demonstrating a strong track record of success and credibility can strengthen this prong.

Prong 3: Balancing Test – Is It in the U.S. Interest to Waive the Labor Certification?

USCIS will assess whether waiving the labor certification requirement would be beneficial for the U.S. This means proving that:

The applicant’s work is urgently needed and waiting for a traditional job offer would hinder progress.
The applicant’s contributions cannot be easily replaced by U.S. workers through the standard labor certification process.

✅ Strong Factors That Favor a Waiver:

The applicant is an entrepreneur launching a business that will create jobs in the U.S.
The applicant has a unique skill set or expertise that would be difficult to replicate in the labor market.
The work involves public health, economic growth, or national security, where a delay in hiring could be detrimental.

📌 Key Tip: Showing how your work contributes to U.S. competitiveness, economic growth, or technological advancements will strengthen your case.

Common Evidence for an EB-2 NIW Petition

To maximize success, applicants should provide a well-documented petition with evidence from multiple sources. Recommended supporting documents include:

✅ For Advanced Degree Professionals:

Diploma(s) and transcripts
Employer letters confirming progressive experience (if using a bachelor’s + 5 years of experience)
Published research papers, books, or articles in major journals

✅ For Persons of Exceptional Ability:

Membership in prestigious professional organizations
Evidence of high salary or substantial industry recognition
Media coverage or publications about the applicant’s work

✅ To Support the NIW Criteria:

Letters of recommendation from industry leaders, government officials, or academic experts
Patents, research contributions, or proprietary technology developed by the applicant
Government reports or studies highlighting the importance of the applicant’s field
Business plans, investment agreements, or grant funding for entrepreneurial ventures

Processing Time and Next Steps

The EB-2 NIW process involves multiple steps, and processing times vary:

1. Filing the I-140 Petition (Immigrant Petition for Alien Worker)

The NIW petition is filed via Form I-140 with supporting evidence.
Processing time: USCIS standard processing takes 6–12 months, but premium processing (45 days) is available.

2. Adjustment of Status or Consular Processing

If the priority date is current, applicants in the U.S. can file Form I-485 (Adjustment of Status).
If applying from abroad, the next step is consular processing.

📌 Key Tip: The Visa Bulletin determines green card availability, so applicants should check current priority dates before applying.

If you need more information about the application process or assistance in choosing the right path for your circumstances, feel free to contact us.

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