If you are looking to hire foreign workers for your business, you should know that every year the United States allows a fixed number of green cards for foreign workers who are needed by U.S. businesses to fill vacancies under the EB-2 green card.
A National Interest Waiver or NIW petition permits a foreign national to self-petition and bypass the customary route which includes getting a permanent job offer and the accompanying labor certification. With an NIW you essentially get to skip the labor certification requirement in light of the “national interest for the U.S.” In order to be eligible for an NIW, you must meet a set of specific requirements.
In addition to the aforementioned criteria, a beneficiary must also demonstrate that they are seeking work within an area of substantial merit to the United States, that the beneficiary’s proposed activity will be of national benefit and that requiring a labor certification will adversely impact the national interest.
Obtaining an employment-based green card can be a long and intensive process that usually requires job offers, labor certifications, petitions, and long waiting periods. Each different preference level has its own benefits as well as its disadvantages. Fortunately, there are two types of green cards that circumvent both the labor certification and job offer requirements by allowing you to self-petition.
The sometimes burdensome PERM Labor Certification process can be avoided by EB-2 petitioners by establishing that the foreign national should be granted a “national interest waiver.” The National Interest Waiver (NIW) allows a foreign national to “self-petition,” and file an I-140 on behalf of himself/herself without the involvement of an employer and a labor certification application.
For almost two decades, the Matter of New York State Department of Transportation (NYSDOT) severely limited the availability of the national interest waivers. This case established a three-prong approach for determining whether a foreign national is eligible for a national interest waiver.
There are various methods of obtaining a green card for a foreign national in the United States, almost all of which can be lengthy and tedious in nature.
One of them is applying for permanent residence based on employment in the United States.
Speaking of employment based green cards, they fall under a variety of categories ranging from:
Normally, to submit any of these employment based petitions, the U.S. employer hiring you, must go through the PERM labor certification process.
This requires the employer to advertise the job and demonstrate to the U.S. Department of Labor that no qualified U.S. workers applied for the job.
Some employment based visas, such as ‘EB-1 Green Card for Priority Workers’ and ‘EB-2 Green Card for Advanced Degrees’ allow to skip the cumbersome labor certification process and let eligible foreign nationals petition themselves.
In this guide, we will provide you with a detailed overview of the Second Preference Employment-Based Immigration National Interest Waiver, or EB-2 NIW.
Physician National Interest Waiver Green Cards (EB-2)
A Physician NIW is a variation of the NIW available to certain medical professionals. Under a Physician NIW, a qualifying alien physician commits to working for five years in clinical practice in an underserved area or in a Veterans Affairs (VA) facility.
Physicians are among the highest number of applicants for the EB-2 NIW green cards.
Below is the list of eligibility criteria for a Physician National Interest Waiver.
You will need to submit a list of supporting documents along with your I-485 petition, while filing for a Physician NIW. These documents are listed below.
Document TypeDocument List
Passport style photograph2 passport-style photos
Required formsSubmit only copies of these forms unless suggested otherwise:Approval notice for Form I-612, Application for Waiver of the Foreign Residence RequirementComplete and signed original Form I-693, Medical Examination and Vaccination RecordForm I-797 Approval Notices for all extensions and changes of statusForm I-20 or IAP 66 school records (front and back, including all school annotations)Original Form G-28, if your case is being represented by an attorneyForm I-797, Approval notice for I-140
Others Copy of birth certificateCopies of all passport pages, along with nonimmigrant visasEvidence that you have complied with the 3 or 5 years service requirement, submitted under 120 days after the completion of the service requirement Fees
EB-1C Multinational Executives and Manager Visa
PERM (Labor Certification) Process
We DO NOT offer EB-1 or EB-2 NIW consultations.
EB-2 NIW for Entrepreneurs
A foreign entrepreneur without a job offer from a U.S. employer can self-petition himself/herself, if the foreign entrepreneur qualifies for a second category employment National Interest Waiver.
Many foreign entrepreneurs filing under the EB-2 visa category, make it through the EB-2 NIW category, for which they must meet the requirements of the NIW petition.
As mentioned above, a foreign entrepreneur can only apply for an immigrant visa through this petition if he/she holds an advanced degree, or holds an ‘exceptional ability’ in the fields of science, arts or business.
There are specific provisions for an entrepreneur who is applying for NIW.
The NIW allows the foreign entrepreneurs to bypass the PERM certification entirely. With this provision, he/she doesn’t need an employer’s petition or labor certification.
The foreign entrepreneur, however, will have to convince the USCIS that their proposed endeavor will have significant potential to employ U.S. workers, along with substantial positive economic impacts.
Recommendations and positive reviews from the foreign entrepreneur’s clients who have or are willing to patronize their enterprise will support the entrepreneur’s case strongly.
In order to get a PERM waiver, the entrepreneur must present evidence to confirm that the benefits of his/her business will outweigh the significance of enforcing the PERM.
What is EB-2 NIW (National Interest Waiver)
The second-preference employment category (EB-2) allows foreign nationals holding advanced degrees and individuals with exceptional ability in the Arts, Sciences and Business to get a U.S. green card.
A National Interest Waiver (NIW) petition falls in the employment-based, or so-called “second-preference (EB-2)” immigration category.
National Interest Waiver (NIW) is a provision, which lets EB-2 green card applicants skip the intensive PERM Labor Certification process, cutting down their green card wait time by significant amounts.
NIWs are usually granted to those who have exceptional ability (details provided later in the guide) and whose employment in the United States would greatly benefit the U.S. nation.
The EB-2 NIW applicants can also self-petition, which means they do not need an employer to sponsor them. They can file Form I-140, Petition for Alien Worker on their own behalf.
A labor certification requires a U.S. employer to assure the U.S. Department of Labor that due to the unavailability of any qualified U.S. worker for the position, the employer sought towards hiring the foreign employee.
How We Can Help With Your EB-2 Visa
When it comes to employment-based immigration, you want to get it right the first time. Just like you wouldn’t sell your home without a realtor, you shouldn’t attempt to navigate immigration law without an experienced attorney by your side.
The EB-2 green card attorneys at VisaNation Law Group have extensive experience with complex employment immigration cases and are prepared to assist you with all stages of the process. VisaNation Law Group’s EB-2 immigration attorneys can help you create the best strategy to meet and document all of the EB-2 requirements efficiently and cut down on the EB-2 processing time.
We can help your employees obtain EB-2 green cards with minimal delays as we have the experience necessary to help you cut through the bureaucratic red tape. We can also make sure that an EB-2 green card is the most appropriate visa program for you or your employees. If it is not, we have the experience to help you with alternatives.
To get in touch with VisaNation Law Group by filling out this contact form and schedule your consultation today!
EB2 NIW Frequently Asked Questions
Below is a list of EB2 NIW frequently asked questions. Due to the complexity of NIW cases, it’s best to consult an EB2 NIW lawyer for further details and specifics regarding your personal situation.
What are the advantages of an NIW as opposed to a regular EB-2 green card?
The National Interest Waiver allows the beneficiary to self-petition, bypassing the requirement for a job offer from a U.S. employer and a PERM Labor Certification. The PERM is designed to protect the jobs of U.S. workers and prevent systematic outsourcing for cheaper foreign labor.
You need to prove that it would be in the nation’s best interest to waive the Labor Certification requirement as opposed to protecting U.S. jobs through the PERM. This is why the regulations state that the U.S. must benefit “on the balance”, meaning that the positive impact that your endeavor will have outweighs the possible negative impact of waiving the PERM for you.
Learn How to Change Jobs After NIW Approval.
Can I get an NIW if I work in a private field?
This question frequently gets asked by individuals who work in a private industry. While many have difficulty providing evidence of national interest if the work is benefiting a private entity, it’s not entirely impossible.
There have been cases where an individual who works in a private field has been able to skip the labor certification process by demonstrating that there were federal benefits associated with their employment. This is because the USCIS prefers to use the concrete evidence of previous accomplishments over the vague and hazy predictions of your future endeavors.
These cases tend to be harder to prove, however, so it’s best to seek the advice of a qualified immigration lawyer.
Can I Qualify for an NIW If I Do Not Have any Awards In My Field?
Due to the flexible characteristics of the NIW, you may be able to qualify without having received awards in your field. Proof of outstanding achievements add much to strengthen your case and may be the difference between an approval or a denial, it is not grounds for denial by itself.
What does “substantial Merit” refer to?
You likely noticed that one of the requirements to have an NIW waived is for the work to have substantial merit. When an EB2 NIW attorney reviews your qualifications he or she will be able to tell you if your endeavor qualifies as having substantial merit. Most occupations related to science or technical work fall under this category.
But what exactly does “substantial merit” mean for the NIW?
The term “substantial merit” is used to describe endeavors that have or will have a marked positive impact in areas like science, technology, business, health, society, culture, education, or infrastructure. The greater the area of positive impact, the greater the likelihood of approval for your NIW.
If I was denied for a labor certification, can I apply for an NIW?
Your previous denial should not have an impact on the outcome assuming you meet the other qualifications for a National Interest Waiver. This is because the requirements for a PERM application have little bearing on the requirements for an EB-2 NIW.
Should I Apply for an NIW if I AM Applying for EB1 Status?
The EB1 green card allows applicants to self-petition and does not require a job offer or LCA in order to qualify. Therefore, an NIW may not be necessary. However, because applying for multiple green card statuses can increase the odds of approval, it is important to consult with your immigration attorney to see if an NIW would be advantageous in your situation.
Do I have to live in the U. to apply?
No. You are not required to be residing in the United States to apply. For example, an award-winning researcher in Russia who won acclaim and recognition for their impact could be considered sufficient evidence for an NIW.
How many support letters are necessary for my case?
Support letter help to backup your NIW case if they can demonstrate that you’ve had an impact within your respective field and that you have public record of your work’s benefits. You can ask individuals including high-level management, colleagues and others who worked in close proximity. Remember, these are not required but in particular cases, they may be helpful.
Are artists and musicians able to apply?
These individuals could receive approval for an NIW assuming they fit the other criteria and were able to provide sufficient evidence. However, attempting to obtain an NIW through these fields is very difficult as it is not easy to prove that your endeavor will have a significant positive impact on an aspect of American life. Work closely alongside your attorney to learn if this is the right path for you.
Should I apply for NIW if I’ve already applied under other classifications?
You can apply under multiple classifications exclusively making your chances of approval will be higher with more than one petition pending. Be aware that if applying in other categories that require a labor certification, the process may be lengthier.
Do I have to have letters of recommendation for my EB2 NIW?
While having letters of recommendation is not an official requirement for the NIW, very few petitions are approved without them. They carry significant weight, especially when they are written by experts in your field that have never worked or collaborated with you.
These letters should describe your work and your contributions in a way that is easily understood by the layman. This is a great way to show that your endeavor will have a positive impact on the United States.
Am I allowed to use the same letters of recommendation for my NIW that I previously used for my EB-1 petition?
This is generally not recommended since the content of the letter demonstrating the respective criteria are different.
Do I have to stay in the same industry as my NIW case after it’s approved?
Yes, you are required to work in the same field that benefits the national interest of the country. If you change areas, you risk having your I-485 denied if it’s still under process.
I Am Self-Employed, Do I Need an NIW?
Yes, you do. Under DOL regulations, you cannot obtain a Labor Certification if you are self-employed and do not have an official job offer. Thus, you need to qualify for an NIW in order to apply for an EB2 green card. This may also apply to you if you own a large amount of stock in the company or are a relative of the employer.
How do I prove that I am in a position to advance the endeavor?
The USCIS wants to know that you not only have an endeavor that will benefit the nation, but also that you have the potential to make it succeed. It is important to note that you do not have to prove that your endeavor will succeed, only that you are capable of success.
There is a variety of evidence that can be used to support your ability to advance the endeavor. You could demonstrate that you’ve acquired an appropriate specialized degree in the field of your endeavor. You could also show that you have had success in the past in a similar endeavor or that you have made substantial progress in your proposed endeavor.
In lieu of these things, you could present a detailed plan for the success of your endeavor. Work with your immigration attorney to determine which aspects of your professional career can be used for your EB2 NIW case.
What is the NIW Processing Time?
Processing time for NIW applications typically run between 3 to 9 months although this time depends on the assigned USCIS Service Center and the adjudicating officer. Processing times vary as USCIS evaluates each application and supporting evidence on a case by case basis. It’s best to consult an NIW green card lawyer who can give you a full breakdown of your case.
You can visit Visa Bulletin to see if EB-2 applicants can file their Form I-485 along with their I-140 petitions for your country of birth.
Immigrant visas are not currently available for individuals born in India and petitioning for an NIW under the EB-2 category.
In fact, current backlogs are longer and heavier for Indian born individuals than even for China born applicants.
However, there is a way for the Indian applicants to be in an advantageous position, to continue working and living lawfully in the U.S.
Applicants from India can file EB-2 NIW petition and obtain an NIW I-140 Immigrant Petition approval, while having a valid non-immigrant visa status, like the H-1B visa.
In short, there are many ways for an individual born in India to benefit from an NIW even though they will not be able to immediately apply for permanent residency.
NIW vs PERM
If you are wondering whether you should take the NIW or PERM path to a green card, or if you are just wondering what the difference between these two documents is, then let’s go over them.
The PERM Labor Certification is a process put in place by the Department of Labor with the intention of protecting the jobs of current U.S. workers. It serves to help prevent employers from hiring large numbers of green card holders and replacing their workforce with less expensive labor.
To get a PERM, an employer needs to place a job order with the state and also advertise for the position through several different channels for at least 30 days. The employer also needs to interview any potential applicants and give a reason for denying each one. Only if no qualified candidates apply can the PERM be obtained, allowing the beneficiary to obtain a green card.
The PERM is required for all EB-3 petitions and most EB-2 petitions. The only way to avoid this requirement for the EB-2 is through the National Interest Waiver.
The advantages of the PERM are that you can obtain an EB-3 with one and you do not have to prove that your work is in the national interest in order to qualify. Your employer simply needs to show that no other U.S. candidates were eligible for the position. However, the disadvantages of the PERM are that you must have a sponsoring employer and a full-time job offer. Also, the DOL may choose to audit the PERM or enact supervised recruitment, which can slow the process down for nine months or more.
The advantages of the NIW are that, by going through the NIW process, the PERM process is waived. You can self-petition and you do not have to have a job offer. However, NIW cases are subjected to a higher level of scrutiny than many other green card categories.
Who can Apply for EB-2 NIW?
The EB-2 visa is the second preference employment-based green card category that grants U.S. permanent residency to foreign nationals with advanced degrees or exceptional ability.
Eligible persons for EB-2 immigrant visa include those who:
A foreign national who abides by the Matter of Dhanasar decision:
NIW Green Card FAQs
Take a look at some of the most frequently asked questions VisaNation NIW green card lawyers receive during consultations and other inquiries.
What is the difference between a regular EB-2 and EB-2 NIW green card petitions?
The difference is that you need an employer to sponsor a regular EB-2 visa while you can sponsor your EB-2 NIW yourself. The employer will also need to obtain a labor certification before submitting an I-140 petition on your behalf. On the other hand, an NIW allows you to file your I-140 directly to the USCIS.
Are labor certifications necessary for NIW cases?
PERM Labor Certifications are not required for those categorized as beneficial to the national interest although they are required for other EB-2 beneficiaries. Based on our experience, a letter accompanied by the NIW from the interested sponsor can have a beneficial effect on the visa case.
What is usually considered an advanced degree?
The terms outlining an advanced degree (as characterized by USCIS) include a United States master’s degree or higher, or a foreign equivalent degree.
What if I only have a bachelor’s degree?
Bachelor’s degrees are also considered the equivalent to a master’s when the individual has five years of progressive experience to add. The experience must be in the specialty or field you are applying for.
Do I have to possess both an advanced degree and exceptional ability to qualify for an NIW?
No, you only need to meet the requirements for one of the two criteria. Though it will be advantageous to meet the USCIS definitions of the two National Interest Waiver requirements, it is not compulsory. With either of the two and a convincing petition, prepared by an experienced EB-2 immigration lawyer, you should be good to go.
I haven’t published any articles in journals in my field. Can I still apply for EB-2 NIW?
The same applies to the “Awards and Professional Membership” criteria. It is not mandatory to have all these before you can qualify. In fact, the USCIS allows those with “comparable evidence of eligibility” that are not exactly as listed on the website to file an NIW petition. The most important thing is how compelling the petition is.
Must I live in the U. to apply for an NIW?
You are not required to be residing in the U.S. to apply for an NIW. However, if you are not in the U.S. when you petition for your EB-2, you will not be able to adjust your status to that of a legal permanent resident. Instead, you will need to go through consular processing for your green card.
Is there a minimum number of letters of recommendation needed?
While there is no minimum number required, the more evidence you submit that demonstrates qualification, the stronger your case will be.
Am I allowed to apply for an NIW if I have a pending labor certification with the DOL?
Yes, you may still apply for NIW even if you have a labor certification pending. The PERM labor certification and the NIW are handled by two different organizations. While your labor certification is filed with the DOL, the agency that will process your NIW is the USCIS. So, one does not stop the other. In fact, it is another way for boosting your chances for approval, in that if your labor certification is denied, you will still have the hope of possibly getting the NIW petition approved.
Can I apply for an NIW if I was denied a labor certification?
Assuming you meet the qualifications for an NIW, your previous denial should not have an impact on the outcome. There are several reasons for your PERM to be denied, including there simply being a qualified U.S. worker available to take your employer’s position. Cases such as these should not be detrimental to your NIW case.
Do I need a job offer to be eligible for an NIW?
Because the NIW is a way to circumvent the job offer requirement, you do not need one in order to apply.
Do I need to have an advanced degree to apply for an NIW?
While it is not a strict requirement to have an advanced degree for an NIW, having one can go a long way in helping your EB-2 NIW case. In place of an advanced degree, a bachelor’s degree with five years of relevant experience in your field may also suffice. In the absence of either of these, you will need to demonstrate that you have exceptional ability in order to qualify for the EB-2 green card.
What is the EB-2 NIW Processing Time?
You can generally expect NIW processing time for the USCIS to adjudicate applications to take anywhere between 3 and 9 months. Although there is always the possibility that it could take longer if you are issued a Request for Evidence (RFE). If you receive an RFE, it is important that you take it to an immigration attorney for help with your prompt response. For an official resource detailing the USCIS NIW processing time, you can visit their website on AAO processing times.
What is EB-2 NIW RFE?
Requests for additional evidence (RFE) are issued by the USCIS, requesting more information from a visa applicant. It is usually issued when the USCIS is not convinced that an NIW applicant meets the criteria needed to prove that he or she is qualified for the visa. This should not be mistaken for denial or rejection.
The recipient of an RFE will only be required to provide some items that appear to be missing in his or her petition. If you receive an RFE, you will be given a timeframe within which the requested information must be provided. It is always best to consult an immigration lawyer to help look into the details of the request and guide you on how to answer it. An RFE must be handled with care as there will be no second chance.
Is an EB-2 NIW the only avenue for getting an employment-based green card without a labor certification?
No, there is also the EB-1, known as the first preference employment-based green card. Just like the EB-2 NIW, EB-1 applicants also do not need a labor certification. Also, if you also qualify for the extraordinary ability subcategory of the visa, you will not need a job offer or employer and you can self-sponsor your petition.
Which should I go for between the EB-1 and the NIW?
The answer will depend on which green card you qualify for the most. Note that the two categories are completely different visas. Each has its own peculiarities. It must also be noted that the overall approval rate for the EB-1 appears to be lower. This perhaps is the reason why many people choose an NIW over EB-1 even when they have the credentials that may qualify for both.
But if you are still not sure which to settle for, you can file both the NIW and EB-1 concurrently. The USCIS allows applicants to submit petitions for the two visas at the same time if you meet the criteria for both. This will actually be an opportunity to improve the likelihood of getting an approval from at least one of the two categories. As a matter of fact, it is possible to receive approvals from the two petitions. But then, you should weigh your options clearly and make an informed decision.
EB-2 NIW Cost and Filing Fees
The total processing time varies tremendously depending on your country of origin and the service center that processes your I-140. On average, however, the petition takes about six months to process.
If you are required to get a PERM Labor Certification, then that could take anywhere from eight months to two years depending on whether or not your employer is audited after the recruitment process. To ensure the best chances for avoiding an audit, make sure you work alongside an immigration attorney.
If six months is too long to wait for your I-140, you may want to consider opting for the premium processing service. This optional feature is offered by the USCIS and shortens your petition processing time from about six months to 15 calendar days for a fee of $2,500
Once your petition is approved, you will need to wait until your priority date is current. For most countries, the date will be current as soon as the petition is approved. However, for EB-2 processing time India and China, the dates may not be current for several years. The only way to expedite this process is to port your green card petition from EB-2 to EB-1, which is no easy task.
After your priority date is current, you can submit your I-485, which will take around six months to process. Again, like the I-140, this depends on the caseload of your service center.
All told, without premium processing, the total EB-2 processing time can range from a year and a half to several years. Because this varies from case to case, speak with your to get a better idea of how long you can expect to wait for your EB-2 visa.
Are EB-2 NIW Eligible to File Form I-485?
In order to obtain an EB-2 NIW green card, you must file and receive the approval of Form I-140 Immigrant Petition, along with Form I-485, Adjustment of Status.
There are two application procedures to fulfill this.
This means that if you are a national of India or China, you cannot file Forms I-140 and I-485 concurrently, as the EB-2 priority dates for the two countries are not current, according to Visa Bulletin.
In the separate filing process, you must make sure that your EB-2 priority date is current.
Once your Form I-485 package (Form I-485 with all its supporting documents) is approved, you will be issued a green card.
What If My NIW Is Denied?
Like anything else in immigration law, there is always the possibility that your petition will not be approved. If you’ve experienced an NIW denial or are looking to avoid it, here are some common reasons:
The legal motions of reopening or reconsidering are essential appeals to the evaluating officer. In a motion to reopen, you are asking the officer to take a second look at your case in light of new evidence that has come to light. For a motion to reconsider, you are demonstrating that the evaluating officer was incorrect in his or her decision to deny your NIW green card case. It is important to note that these are delicate legal procedures and should not be attempted without the help of an immigration attorney.
This section covers the PERM timeline for EB-2 cases. In 2023 the average time for PERM Labor Certification (carried out between the U.S.-based employer and the DOL) processing is about 4 months for preparation then 6 months for the application to be processed. The prevailing wage determination is part of this process as well and takes anywhere from 2-4 months. Recruiting also takes 60 days at a minimum. In terms of a timeline, make sure the PERM Labor Certification is presented within 180 days of beginning any recruiting efforts. Essentially, the purpose of this process is to ensure there are no domestic workers willing and able to carry out the job available.
Once Priority Date Becomes Current How Long to Get a Green card?
You can find your wait time by looking at the monthly Visa Bulletin.
Go to the Employment-Based Preferences chart, and identify your category (EB-2) on the left-hand side (they are organized by India, Mainland China, Mexico, Philippines, Central America and the rest of the world). Some countries have longer wait times than others depending on the per-country visa cap number of submissions. The cutoff date is what you will compare to your priority date (when USCIS received or I-130 or when DOL received the labor certification from the employer). If on the Dates for Filing box chart, the section is marked “current”, that means your priority date is current and there are visas available. Once you see that it’s current you can contact the National Visa Center for moving forward.
EB-2 National Interest Waiver Requirements (AAO)
The first NIW requirement is that the alien must show that his/her proposed endeavor is considered to have substantial merit and national importance. This merit can be shown in areas like business, science, technology, health, culture, or education. There does not need to be quantifiable evidence of economic impact, though it may help your case.
One must keep in mind that meeting this requirement does not create a blanket approval for the field of endeavor and the US government shall review applications on a case-by-case basis.
The second NIW requirement is that the foreign national must be in a position to advance the proposed endeavor. This means that the AAO will look at factors such as the alien’s educational background, experience, relevant skills, a record of similar successes, current progress, and having a plan for success.
Petitioners will not be required to prove that their endeavor will succeed, but rather that they are equipped to make it succeed if the opportunity arises.
The final NIW requirement is that the applicant must present evidence that the U.S. would benefit on balance to waive the job offer criteria for an EB-2. “On balance” simply means that the advantages of waiving the job offer requirement outweigh the advantages of not waiving it.
EB-2 National Interest Waiver Documents Checklist
As a recap, here’s a list of the document required:
You will need to file all of these documents concurrently with your petition in order to be considered eligible for the NIW green card. If your petition and ETA-750B are approved, you will be able to move on to the next step, but only if your priority date is current.
Despite successfully obtaining a National Interest Waiver, you will still need to wait until your priority date is current. The priority date is the day that the USCIS receives your I-140 petition. You will need to check the monthly visa bulletin released by the Department of State to see if your priority date matches up with the final action date given in the EB-2 category for your country of origin. For some countries, the priority date takes several years to become current, but for others, it can be no time at all.
Once your date is current, you can either adjust your status if you are in the U.S. under a valid nonimmigrant status, or you can go through consular processing if you don’t have a valid status. Adjusting your status simply requires filing an I-485 form and waiting for approval. Consular processing involves making an appointment with a U.S. Consulate or Embassy in your home country and participating in a one-on-one interview with a consular officer. In either case, after approval, you will have your NIW green card!
EB-2 Category Process
1. The first step is for the employer who wishes to hire a foreign worker to file with the U.S. Department of Labor for Permanent Labor Certification using the Program Electronic Management Review (PERM) System.
This requires the employer to certify that a job opening is available in a specified professional field, that the job is also available to U.S. workers, that a foreign worker is needed, and that the pay for the job is at a prevailing industry rate.
2. Your employer will need to go through an extensive recruiting process to ensure that no qualified American workers are available to take the position. Going through this process the right way is key, as raising suspicion may trigger an audit from the Department of Labor. This could delay your processing time for up to a year and a half.
3. If all of the requirements are met, the Department of Labor will issue a PERM form, which is necessary to proceed to the next step. EB-2 green card applicants seeking a National Interest Waiver (NIW) may skip this first step.
4. After the PERM form is received, the employer wishing to sponsor a foreign worker for an EB-2 green card must complete and file form I-140, which is the petition for the EB-2 visa. After the petition is received, the applicant must wait for his or her EB-2 priority date to be eligible to proceed to the next step. The priority date depends on when the application is received.
Here’s a summary of the broader green card process steps:
EB-2 NIW Checklist of documents
Documentation of past accomplishments play the most significant role for the USCIS to decide whether or not to grant a National Interest Waiver (NIW).
Type of Document Supporting Documents List
FormsCompleted and signed Form I-140, Petition for Immigrant Worker, orI-140 e-filing confirmation receipt, if you have filed the form onlineCompleted and signed Form ETA-750B.
Supervisory PositionReviewer for a scholarly journal,Member of an editorial board of a scholarly journal,Associate editor,Conference chair holder,Judging an award for excellence in your field
Commercial SuccessSales figures and revenuesPay stubs or tax returns, showing your salaryEmail requests for your work,High number of article downloads,Requests for collaborationProof showing your business has improved the economyEvidence that you work in the same fieldYour leadership rolesProof of at least 2+ years of experience in the area
Other Documents (All Compulsory)Evidence supporting that the applicant has an advanced degree or exceptional abilityCopy of diploma for your highest degreeAll academic recordsAn updated resumeCopy of your passportCopies of front and back sides of your most recent I-94 card.
Can Software Engineers File for EB-2 NIW?
Yes, software engineers can file for EB-2 National interest waiver, provided they have:
Software engineers with EB-2 NIW green cards working in the U.S., work in diverse projects, from advanced cybersecurity techniques to computer-assisted engineering and mathematics simulation models.
Other EB-2 Visa Requirements
A common doubt arises among applicants, if EB-2 NIW petition and EB-2 PERM petition can be filed together.
The answer is, they most definitely can.
The USCIS individually adjudicates all the I-140 petitions.
This means an applicant can file multiple petitions in different categories simultaneously and even then, the petitions would not affect one another.
Similarly, you can file an employer sponsored EB-2 PERM petition and a self-petitioned EB-2 NIW petition at the same time.
As the latter falls under the ‘self-petition’ category, you can freely change your employment without worrying about transferring your EB-2 petition from the old employer to the new.
How VisaNation Law Group Immigration Attorneys Can Help
If you still have questions after reading the aforementioned EB2 NIW frequently asked questions:
EB-2 NIW Criteria
In order to be qualified for EB-2 NIW (National Interest Waiver), the foreign national must either have an ‘exceptional ability’ or hold an advanced degree (or its equivalent) in fields of sciences, arts, or business.
The table below enlists the eligibility criteria of all the occupational categories and requirements for foreign candidates applying for an EB-2 NIW green card.
EB-2 NIW Advanced Degree Requirements
You must have an advanced degree, or it’s foreign equivalent, for the applied job.It may include a baccalaureate or foreign equivalent degree, along with 5 years of post-baccalaureate, progressive work experience in the field.Official academic record showing that you have a U.S. advanced degree or a foreign equivalent degreeOfficial academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree, which could include a U.S. or foreign Ph.D, MD/MBBS, or M.S./M.Tech)Letter of recommendations from current or former employers, ensuring that you have at least 5 years of progressive post-baccalaureate work experience in the field.United States doctorate or foreign equivalent degree (if applicable)
EB-2 NIW Exceptional Ability Requirements
Exceptional ability: a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.You must be able to show exceptional ability in the sciences, arts, or business.You must meet at least three of the criteria in the documents, listed in the next column.Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional abilityLetters documenting at least 10 years of full-time experience in your occupationA license to practice your profession or certification for your profession or occupationEvidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional abilityMembership in a professional association(s)Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizationsOther comparable evidence of eligibility is also acceptable.
Criteria for National Interest Waiver
Foreign nationals seeking a national interest waiver to the Labor Certification, must work towards the best interest of the United States.
Although the jobs qualifying for a national interest waiver are not defined by statute, NIWs are granted to aliens with exceptional ability, whose employment in the United States would greatly benefit the nation.
Those seeking a national interest waiver may self-petition and directly file their Form I-140, Petition for Alien Worker to the USCIS.
Along with evidence of an advanced degree or exceptional ability, you must meet the National Interest Waiver criteria, for USCIS to waive the requirement of a job offer and the labor certification. There are a wide variety of occupations, which meet the criteria for NIW. Some of them are listed below (but not limited to):Researcher Scientist ArtistAnimator Musician PhysicianDentistPilotEntrepreneurEngineer (any discipline)DesignerLawyerTherapistEconomistProfessorBusiness personVeterinarianNursePharmacistUrban plannerConsultant managerArchitectIt must be duly noted that just because an applicant works in one of these professions, they are not necessarily eligible for the EB-2 NIW, unless they demonstrate their unique position and how it serves the national interest.The proposed endeavor has both substantial merit and national importance.You are well positioned to advance the proposed endeavor.It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.
Note: EB-2 petitions should be filed along with an approved Application for Permanent Employment Certification from the Department of Labor on ETA Form 9089, however, this requirement may be waived, in case of a National Interest Waiver case.
How to Prove That You Have Exceptional Ability
To put the NIW into perspective, we need to understand the purpose of the PERM Labor Certification. The PERM is designed to protect American jobs and mitigate the amount of job outsourcing that takes place. This is why U.S. employers need to offer the prevailing wage and determine that no qualified U.S. workers are available to take the position.
Your endeavor must be beneficial enough to warrant waving this protective policy. In essence, this is what the regulations mean when they say that the U.S. must benefit “in the balance”. The positive impact of your endeavor must outweigh the benefits of the PERM.
If you do not possess an advanced degree or its equivalent, then you will need to provide evidence that you possess exceptional ability in order to qualify for your EB-2. Here are some items that qualify:
It is important to note that this list is not exhaustive and there may be many items that could serve to prove your exceptional ability. If you believe that you qualify, but do not see your evidence listed here, be sure to retain the services of an immigration attorney to learn if your evidence fulfills the requirements.
EB-2 Green Card Processing Time
While we can’t provide a definitive timeline the total time it takes for your case to process will depend on a number of factors including your country of origin, the service center that processes your I-140, the documents included in your submission, etc. Typically, the I-140 processing time takes anywhere from 6-9 months. Premium processing is an option, however, which can save you valuable time. The cost to opt for premium processing is $2,500. The normal I-140 filing fee (regular processing) is $700. To get the most accurate case processing time, use this USCIS case tool.
So the overall EB-2 visa processing time can range from 10 months – 2 years, depending on how long your I-140 takes to process and then when a visa becomes available.
For those applying overseas through consular processing, you can expect to wait 4-6 months to receive word back from the U.S. embassy/consulate after a visa becomes available to you. In terms of how long the adjustment of status takes, that will depend significantly on the service center processing the case.
EB-2 NIW Premium Processing Time
In general, you can expect the USCIS to process and adjudicate your EB-2 NIW applications to range between 3 and 9 months.
However, the processing time could be extended, if you are issued a Request for Evidence (RFE).
Also, the time taken to process an EB-2 NIW depends upon a number of factors, including:
Currently premium processing is available for I-140 petitions that are filed with National Interest Waivers. To check the latest updates on premium processing visit USCIS website.
Currently, there are two USCIS Service Centers handling I-140 petitions. They are:
Processing times vary upon the caseloads of these centers, along with individual officers.
You can check the latest processing time for your EB-2 NIW pending petition here.
EB-2 NIW Green Card Processing Time
The NIW green card processing time is typically between 3 to 9 months. Though, this time greatly depends on the assigned USCIS Service Center and the adjudicating officer. Processing times vary as USCIS evaluates each application and
supporting evidence on a case-by-case basis. It’s best to consult an NIW green card lawyer who can give you a full breakdown of your case.
EB-2 NIW Premium Processing 2023
Up until recently, applying for a National Interest Waiver for the EB-2 meant that you were unable to take advantage of premium processing. With premium processing, you can pay an additional fee to have your visa or green card processing time expedited to just 15 calendar days. It does not increase your chances of approval, but it could save you months of time waiting for a decision.
However, while premium processing was available for many of the other employment-based green card categories, including the standard EB-2, it was not an option for those applying for the EB-1C or the EB-2 NIW. This meant that there was no way to speed up the processing time for this category.
That being said, USCIS has recently made substantial changes to the availability of premium processing. In an announcement made on May 24, 2022, USCIS stated that beginning July 1, 2022, current applicants for both the EB-1C and the EB-2 NIW will be able to take advantage of premium processing if they so choose. Petitioners can now file an I-907 to expedite the adjudication process.
However, there are a few caveats to this extension. The first is that this is only available for those that currently have a pending I-140 petition. USCIS is not accepting new premium processing petitions as of the announcement. The second is that USCIS has 45 days to make a decision for petitions with premium processing.
National Interest Waiver Criteria for Physicians
Can Physicians Apply for EB-2 NIW?
Yes, physicians can apply for the second preference employment category (EB-2) NIW.
For example, USCIS may grant the national interest waiver when a physician agrees to work for a period of time in a designated underserved area.
How VisaNation Law Group Lawyers Can Help
It should be noted that although the National Interest Waiver requirements are seemingly easily met based on the case law, attention to detail and the ultimate issues of qualifying for the national interest waiver should not be assumed simply because the USCIS has allowed a certain profession to qualify for NIW easily in the past.
VisaNation Law Group NIW green card lawyers can assist clients in determining whether they are eligible based on the criteria listed above. They can also help you find evidence that could be used to prove your exceptional ability and your endeavor’s positive impact on the U.S. economy.
Their veteran attorneys have significant experience with complex employment immigration cases and are prepared to assist you with any complexities that may arise with your NIW case. If you would like to speak with one of the experts, feel free to fill out this simple contact form to schedule your comprehensive consultation.
Is a Job Offer Required for EB-2 NIW Approval?
National Interest Waiver is a provision under which a foreign national can apply for employment-based green card without a job offer from an American employer.
So the answer is No.
A foreign national can file their own EB-2 NIW petition and file the I-140 form on their own behalf, without the involvement of either an employer or a labor certification.
How Much Does it Cost to File for EB-2 NIW?
The cost break up of filing for the second preference employment category NIW is shown below:
EB-2 Priority Date Retrogression and Consular Processing
It changes over time depending on how many visa applications are currently in processing. Applicants need to be aware of the idea of retrogression in the priority date. It occurs when there are more applicants for an EB-2 green card than there are allocated green cards available.
For example, if the current processing time is three months and suddenly there is a spike in the number of applications, only applicants who have filed at least six months ago might be allowed to proceed to the next step. This means that as soon as you can proceed to the final step, it is in your interest to do so if you do not want to experience delays in the EB-2 processing time.
This is done through a one-on-one interview with a consular officer who will ask specific questions related to your employer, your occupation, and your arrangements in the U.S. If the officer clears you, you will be able to travel to the U.S. and get stamped as a legal permanent resident.
If the applicant is already in the United States on a different Visa, the applicant needs to file for an Adjustment of Status using Form I-485 to have their status automatically adjusted to EB-2 status.
Applicants will then be told to go to a USCIS Application Support Center for security processing, which generally requires fingerprinting and having your picture taken. Some applicants may be required to attend an interview. The final decision will be mailed to the applicant once it is available.
Letters of recommendation or support letters help to reinforce your NIW case if they can demonstrate national interest and can also show that you have had an impact within your respective field which highlights your work’s benefits. These letters can be from high-level managers, former employers and colleagues, or anyone else familiar with the benefits of your work.
However, it is important to note that the USCIS will place different weight on letters of recommendation depending on who wrote them. For example, letters from peers and colleagues will hold less weight than letters written by esteemed contemporaries that did not have a hand in your work.
As it stands, there is no minimum nor a maximum number of recommendation letters that are required. If you do choose to include them, they should be placed underneath Form I-140 in your package. Once received, USCIS will examine these letters of recommendation in addition to the credentials of their writers.
Accompanying these letters should be a list of the individuals who wrote the letters as well as their titles and employers.
EB-2 NIW Dependents
Once your I-140 petition is approved, your immigrant spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States in E-21 and E-22 immigrant status, respectively.
Your (EB-2 NIW applicant) dependents will also be able to file the Form I-485 Adjustment of Status Applications (once your EB-2 priority date is current) as part of your NIW green card application process, allowing them to receive their own green cards.