The EB-2 NIW visa

The EB-2 visa is an employment-based immigrant visa for applicants holding an advanced degree or having exceptional ability. Applicants in one of these two groups whose work serves the national interest of the United States may apply for a national interest waiver (NIW) as part of the EB-2 application. With an EB-2 NIW visa, applicants are treated as lawful permanent residents of the United States.

To apply for an EB-2 visa, the applicant first needs to file FormI-140(officially named the “Immigrant Petition for Alien Worker”). The NIW allows applicants to self-petition — no job offer is needed and no prior regular labor certification (PERM) is needed.

A detailed article onVisa EB-2.

How much does the EB-2 NIW cost?

NIW applicants will first need to pay USD 715 to file Form I-140. After the I-140 is approved, the costs will vary depending on where the applicant is living.

Where the applicant is already living in the United States, they will need to pay the filing fee for Form I-485 (officially named the “Application to Register Permanent Residence or Adjust Status”). They also need to pay for a medical examination, costing from USD 200 to USD 400.

Where currently living abroad, the applicant will need to apply through consular processing. For an employment-based green card, the consular visa processing fee is USD 345.

How long does the EB-2 NIW take?

For Form I-140, processing times may range from 10.5 to 26.5 months, depending on where the applicant files. After the applicant receives the approval notice, they will need to check theVisa Bulletinof the United States Department of State to see whether a green card is available.

United States Citizenship and Immigration Services (USCIS)When a visa is available, the applicant may begin the green card process. Where applying from within the United States, they will need to file FormI-485. Waiting times vary depending on the location, but it may take more than 2 years for the United States Citizenship and Immigration Services (USCIS) to process the application.

Where applying from abroad (through consular processing), the applicant will likely wait from 4 to 6 months.

For an up-to-date view of estimated processing times, check the USCIS processing times tool. Where an application has been filed and you wish to check its status, you may do so on the USCIS website.

EB-2 NIW eligibility

This section discusses the eligibility requirements for an EB-2 national interest waiver.

The national interest waiver

To obtain a successful NIW, the applicant must demonstrate:

• That their proposed endeavour has “substantial merit and national importance”
• That they are well positioned to advance the proposed endeavour
• That, on balance, waiving the job offer and PERM certification requirements would serve the national interest

By the phrase “on balance”, USCIS means that the benefits of certification are outweighed by the benefits of the NIW.

See the Frequently Asked Questions section for a brief explanation of PERM certification.

“Substantial merit” may be shown across many different fields including education, health, culture, technology, science, entrepreneurship and business. Applicants need not demonstrate an economic benefit from their work, and may instead frame the proposal in terms of a broader impact on social welfare.

Nor need an applicant’s proposed endeavour affect the whole geographic area of the United States. For example, bringing a large number of jobs to an economically depressed area may be regarded as an endeavour of national importance, despite its local scope.

Nor is it necessary to demonstrate that the endeavour is “more likely than not ultimately to succeed”. The applicant need only demonstrate that they are well positioned to advance the endeavour successfully. This means the applicant does not need, for example, an established and successful company in order to apply for an NIW. However, having a company with a long history of success may strengthen their case.

An advanced degree or exceptional ability

In addition to the above requirements, applicants must demonstrate that they hold an advanced degree or a foreign equivalent, or have exceptional ability. For exceptional ability, they must possess “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business”. And for an advanced degree, they must hold at least the equivalent of a master’s degree, or the equivalent of a bachelor’s degree together with 5 years of post-graduate work experience.

Note:

It is important to be sure that an advanced degree really is equivalent to a similar degree in the United States. For example, in some countries a law degree may be obtained at bachelor’s level and so would not be regarded as an advanced degree. To confirm the equivalence of a qualification, applicants may use a credential evaluation service, such asWorld Education ServicesorEducation Credential Evaluators.

Evidence for the EB-2 NIW

To meet the NIW criteria, applicants will need to gather the relevant evidence, which will then be attached to Form I-140. This section will:

• Discuss some guiding principles for compiling the evidence
• And provide a list of the documents applicants may use to build their case

Guidance for the NIW

No supporting documents are listed in the relevant legislation, meaning that USCIS officers must decide case by case. However, USCIS does provide some guiding principles that may be helpful.

For example, to determine whether an applicant is well positioned to advance the plan, officers may consider a range of different factors, including:

• Education
• Skills
• A record of success in the applicant’s field
• Applicable knowledge
• A well-developed plan setting out the way forward
• Any record showing progress towards the applicant’s goals
• Demonstrable interest from shareholders, users, customers or other types of stakeholder

To determine whether an applicant meets the third criterion — whether waiving the PERM certification requirement would benefit the United States — officers may consider factors such as:

• Whether it is practical for the applicant to obtain a job offer or labor certification, given the nature of their skill set
• Whether the United States would benefit from the applicant’s work, regardless of its impact on United States workers in a similar field
• Whether the United States has an urgent need for the applicant’s skill set

Below are some examples illustrating how applicants may use these factors to build their case:

Using the first factor, entrepreneurs may argue that it would be impractical (if not illogical) for a business owner to have to obtain certification or a job offer. In relation to the second factor, applicants may argue that their work is so important to social welfare that it matters regardless of whether United States citizens have advanced similar projects. Finally, scientists may argue, on the basis of the third factor, that their work is urgently needed to save lives or prevent disease.

Evidence for the NIW

With these guiding principles in mind, applicants may begin gathering specific evidence for a national interest waiver. The evidence may include:

• Relevant data
• Articles or other media showing the applicant’s impact on their field and the national importance of the endeavour
• Academic research
• A complete project plan showing how the applicant will advance the endeavour’s goals
• Letters written by experts in the relevant field (see the Frequently Asked Questions for further details)
• Any specific evidence of contributions to the field
  • This may include awards, conference papers, patents or any other form of official recognition
• A résumé
• Qualifications

In addition, entrepreneur applicants may include in the petition:

• Evidence of start-up capital
• Letters of intent
• Evidence of contracts

In gathering evidence, applicants should make sure they are building a narrative addressing each of the 3 NIW criteria.

In addition to the documents listed above, applicants also need to gather evidence showing that they hold an advanced degree or have exceptional ability. Each group is discussed below.

Evidence for an advanced degree

Where applying under the advanced degree category, applicants will need 1 of the following documents:

• A degree certificate and transcripts showing that they have obtained the equivalent of a master’s degree or higher
• A degree certificate and transcripts showing that the applicant has obtained the equivalent of a bachelor’s degree — together with letters from employers showing 5 years of post-graduate work experience
  • The letters must demonstrate that the applicant improved their skill set over those 5 years

Where an applicant holds an advanced degree (or its equivalent), they should consider carefully taking this route. As will be seen, the exceptional ability category is somewhat more complex.

Evidence for exceptional ability

To qualify under the exceptional ability category, applicants must be able to provide at least 3 of the following documents:

• Official academic records showing that they hold a certificate, diploma or degree from a university or school relating to the exceptional ability
• Evidence of payment for services relating to the applicant’s ability
• A licence (or certification) obtained by the applicant to practise their profession
• Membership of a relevant professional association
• Letters showing 10 years of full-time work experience in the field
• Official recognition — by colleagues, government bodies or relevant organisations — of the applicant’s contributions to the field
• Other comparable evidence of eligibility

In addition to reviewing the documents, the USCIS officer will need to be persuaded that the applicant has exceptional ability. For this reason, applicants should, where possible, provide more than the 3 items listed above. In other words: simply presenting a few documents is not enough; the evidence must be framed in a way that strengthens the applicant’s argument.

All the documents mentioned in this section must be filed together with Form I-140. For a detailed explanation of the filing process, see the USCIS guidance on filing the I-140.

Background

In a 1998 decision, named Matter of New York State Dep’t of Transportation (NYSDOT), the Administrative Appeals Office (AAO) of the United States Citizenship and Immigration Services (USCIS) developed a three-criteria framework for assessing NIW petitions. Under that framework, USCIS officers had to assess:

• Whether the work in question had “substantial intrinsic merit”
• Whether the applicant’s work and its benefits were “national in scope”
• Whether the PERM certification requirement would adversely affect the national interest

In a 2016 decision, named Matter of Dhanasar, the AAO found these criteria wanting. On the first requirement, it found the word “intrinsic” unnecessary and misleading. On the second requirement, the administrative panel determined that the phrase “national in scope” was open to being interpreted in purely geographical terms.

Finally, the third criterion — with 4 separate definitions scattered throughout NYSDOT — was particularly confusing and redundant. In practice, it required applicants to submit evidence similar to that needed for PERM certification, which the waiver was designed to replace.

Frequently asked questions