EB2-NIW Explained
What is an EB2-NIW visa?
Eligibility Criteria for EB-2
How do you qualify for an NIW (National Interest Waiver)?
How to Apply for an EB-2 NIW?
Obtaining your green card
Family of EB-2 Visa Holders
Additional Resources
What is an EB2-NIW visa?
EB2 is part of the employment-based immigrant visas available to those "who are members of the professions holding advanced degrees" or foreign nationals of "exceptional ability." NIW stands for National Interest Waiver; the waiver applies to a job offer and labor certification requirement.
In simple terms, this is an immigrant visa (also known as a green card) for highly skilled individuals to come to the U.S. without needing a sponsor. It's part of the immigration law known as the Immigration and Nationality Act (INA).
To qualify for an EB2-NIW immigrant visa, the foreign individual must meet the eligibility criteria for the EB-2 and qualify for the National Interest Waiver.
Eligibility Criteria for EB-2
To qualify for the EB-2 category, including the NIW, you must meet the specific criteria for one of two categories:
Members of the Professions Holding Advanced Degree
EB-2 immigrant visa applicants must show that (1) they are members of a profession that requires an advanced degree and (2) they hold the degree or its equivalent in education and professional experience. In other words, it is not enough to hold an advanced degree; the applicant's profession must require an advanced degree.
A master's degree or higher is an advanced degree, while a bachelor's degree plus five years of progressive experience in the field is the equivalent of education and work experience.
Here are some professions that typically require an advanced degree to qualify for an EB-2 visa:
Medical Professionals: Physicians, surgeons, dentists, and other healthcare specialists often require advanced degrees (M.D., DDS, etc.) to practice in the United States.
STEM (Science, Technology, Engineering, Mathematics) Fields: Engineers (civil, mechanical, electrical, etc.), computer scientists, data scientists, researchers, and scientists in various fields often hold advanced degrees (Master's or Ph.D.) to qualify for an EB-2 visa.
Business and Finance Professionals: Certain positions in finance, economics, accounting, and business management may require advanced degrees like an MBA, Ph.D. in Economics, or other related fields.
Educators and Academics: University professors, researchers, and educators often hold advanced degrees, such as a Ph.D. in their field of study.
Architects: Professionals in architecture might require an advanced degree (Master's or higher) to practice and qualify for the EB-2 visa.
Lawyers: Attorneys typically need a JD (Juris Doctor) degree to practice law in the United States.
Foreign nationals of Exceptional Ability
Alternatively, EB-2 immigrant visa applicants must show exceptional ability in the sciences, arts, or business. In the context of extraordinary ability, the art category includes athletes and entertainers.
"Exceptional ability" is a degree of expertise significantly above that ordinarily encountered. Any three of the following may be presented as proof of exceptional ability:
Official academic record showing that applicant 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;
Evidence in the form of a letter(s) from current or former employer(s) documenting that an individual has at least ten years of full-time experience in the occupation for which they are being sought;
A license to practice the profession or certification for a particular profession or occupation;
Evidence the applicant has commanded a salary or other remuneration for services, demonstrating exceptional ability;
Membership in a professional association; or
Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, professional, or business organizations.
USCIS will apply a two-step analysis, first considering if the applicant possesses at least three categories of evidence for exceptional ability and then determining if the evidence submitted is sufficient to demonstrate that the beneficiary meets the required high level of expertise.
3. How do you qualify for an NIW (National Interest Waiver)?
NIW is available to those who can demonstrate that it is in the national interest of U.S. Citizenship and Immigration Services (USCIS) to "waive the requirements... that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States" for an EB-2 beneficiary (i.e., waiving the requirement of a job offer and labor certification).
Applicants must propose a work plan or project that meets the current NIW standard set out in Matter of Dhanasar, which is composed of three requirements:
I. The applicant's planned work has substantial merit and national importance.
Determining whether the requirement for "substantial merit" is met, applicants can demonstrate merit in "a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education."
As for "national importance," USCIS officers must also examine the national importance of the specific endeavor proposed by considering its potential prospective impact. Officers should focus on the nature of the proposed work rather than only the geographic breadth of the endeavor.
Ultimately, if the evidence of record demonstrates that the person's proposed work has the significant potential to enhance societal welfare or cultural or artistic enrichment broadly or to contribute to the advancement of a valuable technology or field of study, it may rise to the level of national importance.
II. The applicant is well-positioned to advance the proposed work.
In evaluating whether the person is well positioned to advance the proposed work or project, USCIS considers factors including, but not limited to:
The person's education, skills, knowledge, and record of success in related or similar efforts;
A model or plan that the person developed or played a significant role in developing for future activities related to the proposed work or project;
Any progress towards achieving the proposed work or project and
The interest or support garnered by the person from potential customers, users, investors, or other relevant entities or persons.
III. On balance, it benefits the United States to waive the job offer and labor certification requirements.
Once officers have determined that the petitioner met the first two prongs, they analyze the third prong. This last prong requires the petitioner to demonstrate that the factors in favor of granting the waiver outweigh those that support the requirement of a job offer and a labor certification, which is intended to ensure that the admission of foreign workers will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.
4. How to Apply for an EB-2 NIW?
To apply for an EB2-NIW, you must file a form I-140 with USCIS, including evidence documenting that you meet the EB-2 criteria and are eligible for the National Interest Waiver. In addition to the I-140 form and evidence, you must submit the employee-specific portions of a permanent labor certification (without DOL approval), you can use either the Form ETA 750B or Form ETA 9089, and pay the filing fees. The I-140 can be filed with USCIS online or through mail.
The approval of an I-140 petition is not a visa or green card. Once a petition is approved, you can apply for an immigrant visa at a consulate, or, for those who are in the U.S. and qualify for adjustment of status, you must apply for adjustment of status once your immigrant visa becomes available. See section 5 for more information.
5. Obtaining the green-card
Once your I-140 petition has been approved, you can apply for your green card through adjustment of status (if you are in the USA and qualify) or through consular processing.
A. Adjustment of Status: If you are already in the United States with a legal status, you may be eligible to adjust your status to that of a permanent resident (green card holder) when your visa becomes available. Check the visa bulletin to find out whether a visa is available to you. To apply for adjustment of status, you need to file a Form I-485 (Application to Register Permanent Residence or Adjust Status) with USCIS. If approved, you will be issued a green card, granting you lawful permanent resident status.
B. Consular Processing: If you are outside the United States or ineligible for adjustment of status, you will need to go through consular processing at a U.S. embassy or consulate in your home country. This involves completing Form DS-260 (Immigrant Visa Electronic Application) and attending an interview to obtain your immigrant visa, which allows you to enter the U.S. as a permanent resident.
6. Family of EB2-NIW visa holders
If your I-140 petition is approved, your spouse and unmarried children under 21 may be eligible to apply for admission to the United States in E-21 and E-22 immigrant status, respectively.
