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EB-2 National Interest Waiver 

What is the EB-2 National Interest Waiver (NIW)?

The National Interest Waiver (NIW) immigration is a special case under the Employment-Based Second Preference (EB-2) of U.S. immigration law. In a standard EB-2 application, the applicant not only needs a U.S. employer but also requires the employer to provide a permanent job offer. The employer must also apply for a labor certification for the applicant with the Department of Labor. After obtaining approval of the labor certification, they can then file an immigration petition with the U.S. Citizenship and Immigration Services. The National Interest Waiver is an exception. Based on considerations of national interest, the U.S. government exempts certain foreign nationals, who significantly benefit or contribute to the U.S. national interest, from the requirement of a permanent job offer and the lengthy and complicated labor certification process, allowing them to directly apply for a green card with the immigration authorities.

 

Who may be qualified for EB-2 NIW?

 

Requirement One:

To qualify for the National Interest Waiver, the applicant must first demonstrate eligibility for the EB-2 visa classification, which means being a professional with an advanced degree, or, if lacking an advanced degree, being an individual with exceptional ability in the sciences, arts, or business. Some applicants may possess both an advanced degree and exceptional ability.

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  • Advanced Degree

An "advanced degree" refers to a master's degree or higher, or its equivalent, from a U.S. or foreign equivalent university, and working in a field that requires an "advanced degree," or in traditional professions such as a lawyer, doctor, architect, engineer, or teacher. Possessing a bachelor's degree plus five years of professional experience in the relevant field also meets the "advanced degree" requirement.

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  • Exceptional Ability in Sciences, Arts, or Business

"Exceptional ability in the sciences, arts, or business" refers to a level of expertise significantly above that ordinarily encountered in these fields. The applicant must submit relevant documents from at least three of the following six categories of evidence:

(A) An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
(B) Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
(C) A license to practice the profession or certification for a particular profession or occupation;
(D) Evidence that the alien has commanded a salary, or other renumeration for services, which demonstrates exceptional ability;
(E) Evidence of membership in professional associations; or
(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

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Requirement Two:

In addition to the basic requirements as above, to obtain a National Interest Waiver, the applicant must also satisfy the following conditions:

  1. The proposed endeavor has both substantial merit and national importance; 

    The applicant's field of endeavor must be significantly valuable to the U.S. This means their work should have a positive impact on the nation's economy, education, health, technology, culture, or other important sectors. The importance of this field should not be limited to the applicant's local area but should have a national impact.

  2. The individual is well-positioned to advance their proposed endeavor; and

    The applicant needs to demonstrate that they have made significant achievements and contributions within their professional field. This can be evidenced through published research findings, professional awards received, leadership positions in the industry, impact on the public interest, etc. Applicants need to show that their work has a positive effect on the advancement of their field.

  3. On balance, waiving the job offer requirement would benefit the United States. 

    The applicant must demonstrate that for them, the absence of labor certification requirements is more beneficial for the advancement of their professional field and positively impacts the U.S. national interest. This means the applicant needs to show that their work is so important to the U.S. that foregoing the labor certification process is justified.

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What are the advantages of applying EB-2 NIW?

  • Labor Certification is not needed: Unlike other employment-based immigrant visas, the applicants of EB-2 NIW are not required to go through the Labor Certification process to show a shortage of U.S. workers in the labor market.

  • Fast process: comparatively speaking, EB-2 NIW processing time is shorter than other employment-based immigration processes because it waives the lengthy Labor Certification process.

  • Employer Sponsorship is not required: EB-2 NIW applicants are not required to have sponsorship from their current or prospective employers. Therefore, they are not tied to one employer, and change of jobs is totally possible (although the new job must still be meet the “substantial merit” and “national interest” requirement).

  • The job offer is not required: EB-2 NIW applicants can file their application without having a job offer from a U.S. employer.

  • EB-2 NIW has a lower threshold than EB-1A: EB-1A Employment-based visa requires the applicants to provide that he/she satisfies 3 of the 10 “extraordinary ability” criteria. Compare to EB-1A, EB-2 NIW eligibility requirements are less burdensome. Because of that, EB-2 NIW approval rates are significantly higher than EB-1A applications.

 

What is the EB-2 NIW Processing Time?

USCIS typically takes 9.5 to 12.5 months to process applications, starting from the day the  NIW application is received. If the applicant's country of birth does not require a visa bulletin wait under this immigration category, the applicant can apply for a work permit and travel document while waiting for the NIW review, ensuring their work and travel plans are unaffected. Starting January 30, 2023, NIW applicants can opt for premium processing, which guarantees processing within 45 calendar days, in contrast to the 15-day processing for other employment-based immigration applications. However, it's important to note that premium processing only accelerates the USCIS review period and does not shorten the visa bulletin wait time after immigration application approval.

 

What is the Priority Date?

Generally speaking, an EB-2 NIW applicant cannot file his Application for Adjustment of Status (if he/she lived in the U.S.) or Application for Consular Processing (if he/she lived outside the U.S.) until his priority date becomes current. For EB-2 NIW applicants, the priority date is the date an immigration petition is received by USCIS. The priority date is not established until USCIS approves the immigration petition.

 

What are the application fees? (subject to change)

  • Form I-140 Filing Fees: $700

  • Form I-485 Adjustment of Status including Form I-131 Application for Travel Document and I-765 Application for Employment Authorization: $1,225 per person greater than 14 years old; $750 per person under 14 years old

  • Expert Opinion Letter fees: Approximate $600-$900

  • Academic Evaluation fees: Approximate $ 300-500

  • Translation fees: Approximate $500-$1,000

  • Medical Exam fees: Approximate $450-$800

 

What services does AllBelief Law Firm provide?

  • We will provide you with a completed document list for all of the documentation needed for EB-2 NIW Petition.

  • We will help you prepare and organize the documentation.

  • We will provide clear answers to any questions you may have for your petition.

  • We will help you edit your current Resume.

  • We will help you sort out the documents need to be translated.

  • We will help guide you to complete Academic Evaluation and Expert Opinion Letter drafting.

  • We will create a questionnaire for you to send to your supporting person to gather facts for the Supporting Letters.

  • We will draft 3 Supporting Letters for your petition.

  • We will draft a professional plan tailored exclusively for your proposed work.

  • We will analyze your credentials and contributions in your field, prepare a legal argument, emphasize your expertise, and draft a Petition Letter.

  • We will complete and file Form I-140, and any other forms and services you purchased.

  • We will help you respond to government questions and prepare you for your in-person green card interview.

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