The EB2-NIW is one of the green card categories in the U.S. employment-based immigration system and falls under the second preference employment-based immigration category. It permits persons of exceptional ability or those with advanced degrees to avoid the normal labor certification process and the need for an employer sponsor if it can be shown that the person’s work will be in the national interest of the United States. This waiver eliminates the need for a U.S. employer to file a labor certification (PERM), thus allowing the applicant to self-petition.

The principle of the National Interest Waiver is that some people are so valuable to America due to their talent or accomplishments that they should be allowed to live and work in the U.S. regardless of an employer’s sponsorship. The waiver is generally given to individuals demonstrating that their work affects industries such as science, technology, healthcare, education, or business creation.

The individuals or businesses applying for the classification have to prove that they possess a set of characteristics that show their extraordinary skills or the fact that they hold an advanced degree. Last but not least, their work has an impact on the nation. The USCIS can grant waivers for labor certification and employer sponsorship, and the agency determines the impact of waiving the two requirements on the country.

This text is for educational purposes only and is not a substitute for legal advice. The text does not claim to be correct or up to date. Please contact a lawyer if you have any legal questions.

How It Differs from Other Employment-Based Green Card Categories

The EB2-NIW differs from other employment-based green card categories in several key ways:

No Employer Sponsorship Required

Unlike most employment-based green cards, such as EB-2 PERM and EB-3, where a U.S. employer must sponsor the applicant and go through the labor certification process, the EB2-NIW can be filed without an employer’s support. This means that one can apply independently without needing an employer’s job offer.

Labor Certification Exemption

Most EB-based green card applications require the employer to file a PERM labor certification to prove that no qualified American worker can fill the position. The NIW does not require the applicant to fulfill this requirement if the applicant can demonstrate that his or her work will be of great value to the U.S.

Higher Standard of National Interest

Job offers and market-based needs are sufficient for other employment-based categories. On the other hand, EB2-NIW applicants have to prove that their work is of national interest. To justify the waiver, they must be able to support their contributions’ benefit to a core area of society, including technology, medicine, engineering, or research.

Similarity to EB-1 (Extraordinary Ability)

Like EB-1A (Extraordinary Ability), EB2-NIW allows the applicant to submit a petition on his/her own behalf, but the requirement is more stringent than EB2-NIW. While the EB2-NIW candidate must prove that his or her work will benefit the United States, the EB-1A candidate must present evidence of extraordinary ability. Some people regard the NIW as an option for those who cannot qualify for EB-1A.

Who Typically Applies for EB2-NIW?

Generally, the applicants of the EB2-NIW category are professionals with specific educational backgrounds and work experience. The following applicants should apply for this position: Any person holding a master’s, Ph.D., or any higher degree in their field of interest or any person who can prove their exceptional ability in their field of interest. Typical applicants include:

• Scientists and Researchers – Individuals in occupations that include biotechnology, medicine, physics, environmental science, and engineering who play a role in discoveries, health care development, or national defense projects.
• Medical Professionals—Doctors, public health experts, and medical researchers involved in treating and preventing diseases, researching the spread of diseases, and improving health care.
• Science and Technology Workers – Scientists and other professionals in artificial intelligence, cybersecurity, software engineering, and renewable energy who support technological innovation and America’s economic leadership.
• Teachers and Lecturers – Researchers in any discipline who produce research that has national significance in areas such as STEM, education, and social sciences.
• Business Start-Ups and Creators – Persons involved in company formation, employment generation, and overall economic development, particularly in strategic sectors.

EB2-NIW is suitable for those who can prove their direct contribution to the United States, making it an excellent choice for professionals who want to obtain permanent residence in the USA but cannot find an employer who will sponsor them.

Eligibility Criteria for EB2-NIW

EB-2 Basic Requirements

The EB-2 (Employment-Based Second Preference) visa is available for those foreign workers who hold an advanced degree or have exceptional ability in their occupation. To qualify for EB-2, applicants must meet one of the following:

Advanced Degree – The applicant must have either:

A master’s degree (or higher) from a U.S. institution or a foreign equivalent or A bachelor’s degree plus at least five years of progressive work experience in their field

or

Exceptional Ability: Where the applicants has not completed their higher education, they may apply under exceptional ability if they have extraordinary ability in the particular field. This requires meeting at least three of the following six criteria:

• A degree, diploma, or certification in the field.
• At least 10 years of full-time experience in the profession.
• A professional license or certification.
• Proof of a high wage suggests that one is very competent.
• Membership in a professional association.
• Recognition for achievements and contributions to the industry.

That is just the first part of meeting the EB-2 requirements. In addition, applicants for the National Interest Waiver (NIW) must demonstrate that their work is of national interest, and therefore, the job offer and labor certification requirements should be waived.

NIW (National Interest Waiver) Requirements

The National Interest Waiver (NIW) is a provision within the EB-2 category that allows applicants to self-petition without needing a U.S. employer. Instead of a job offer and labor certification, the applicant must prove that granting them a green card benefits the United States significantly.

The U.S. Citizenship and Immigration Services (USCIS) determines NIW eligibility using a legal framework known as Matter of Dhanasar, which established a three-prong test for NIW applicants.

Matter of Dhanasar Framework (Three-Prong Test)

The Matter of Dhanasar decision (2016) provided a better definition of NIW applicants. To qualify, applicants must meet the following three criteria:

1. Substantial Merit and National Importance

The applicant’s work must be significant in science, technology, health care, education, or business. It also has to be of national interest—that is, it should be in the interest of the country as a whole and not just one employer.

Example: A biomedical researcher developing cancer treatments meets this standard because his or her research is relevant to a national health issue.

2. Well-Positioned to Advance the Work

The applicant should prove that they are qualified to undertake the proposed work. This can be proven through:

• Educational background and degrees
• Work experience and past achievements
• Published research, patents, or awards
• Letters of recommendation from industry experts

Example: An AI engineer with a master’s degree, several patents in cybersecurity, and a strong work history is set to start a business in AI technology in the U.S.

3. Balancing Test (Benefit to the U.S.)

USCIS must find that the waiver of the labor certification requirement is in the best interest of the United States rather than imposing it. The applicant must show that:

• What they do has a large influence.
• The U.S. would benefit more from granting them a green card than imposing a standard employer-based approach.

Example: A renewable energy scientist developing solutions to climate change may assert that their work is of the utmost importance to national security and sustainability, thus exempting them from the rule.

Examples of Qualifying Professionals

EB2-NIW is often applied for by persons engaging in a profession that has a bearing on the national interest. Some examples include:

1. Scientists and Researchers

Medical scientists are involved in the development of cancer drugs or other diseases. Those who have chosen environmental science, specifically climate change and sustainability-related fields, Physicists developing renewable energy technologies

2. Medical Professionals

• Physicians responding to the challenges of healthcare crisis in needy regions.
• The target group includes experts in disease prevention and control, as well as pandemic management.
• Surgeons and specialists with groundbreaking medical techniques.

3. Engineers and Technology Experts

• AI specialists working to enhance the cybersecurity and automation fields.
• Civil engineers create structures for disaster risk reduction.
• The authors in this field are robotics specialists focusing on manufacturing efficiency and national defense.

4. Academics with national importance

• University teachers are studying ways to enhance STEM education with a nationwide influence. Teaching in a school class has no national influence.
• Economists and sociologists studying the economy and labor markets.
• Advocates of the use of educational technology to advance accessible learning solutions.

5. Entrepreneurs and Business Leaders

• Those startups are centered on job creation and technological advancement.
• Business leaders who support economic development and the improvement of U.S. economic performance.
• Green technology and sustainability as business models – founders of companies.
• All these professionals qualify for the EB2-NIW category because their work broadly influences the nation in the long run.

Advantages of EB2-NIW

The EB2-NIW is one of the most desirable U.S. green card categories for working professionals because it allows for waiving the job offer requirement. It offers a straightforward route to permanent residency without the requirement of an employer’s sponsorship or labor certification. EB2-NIW, when compared with other employment-based green card categories, is less rigid, more self-governing, and usually has faster processing time. The following are the benefits of the EB2-NIW category.

1. No Employer Sponsorship Required

Perhaps one of the main advantages of the EB2-NIW category is that it is not dependent on the employer’s support. For most employment-based green card petitions, the applicant will need a U.S. employer who can file for the applicant, meaning that the employer has to provide a job and support the immigration process. However, with the NIW, applicants don’t require anyone to sponsor them since they can apply independently.

Benefits of No Employer Sponsorship

• Freedom: In an EB2-NIW petition, applicants are not required to have an employer file on their behalf or obtain the employer’s approval.
• Employment Portability—Unlike the other employment-based visas (EB-2 PERM or EB-3), the EB2-NIW does not require employment by a specific employer or employment in a specific job. The applicant can either seek another job, start a business, or seek other opportunities.
• No Employer Restrictions—Certain employers cannot hire foreign workers because they cannot afford to do so, there are legal barriers, or the employer simply has a policy against it. EB2-NIW does away with this hurdle in that the applicant can seek the green card independently.

EB2-NIW is the best option for individuals who would like to control their immigration and career decisions.

2. No PERM Labor Certification

One of the biggest benefits of EB2-NIW is that it does not require the PERM labor certification process necessary for most other EB-2 and EB-3 categories.

What is PERM Labor Certification?

The PERM labor certification is a process that requires a U.S. employer to prove that:

• There is no qualified American worker for the job on offer.
• This will not threaten American workers’ wages and job opportunities in any way.
• This process can take months or even years and includes several stages, such as the announcement of the job opening and the waiting for applications from United States citizens

Why EB2-NIW is Advantageous?

• Efficient – EB2-NIW does not need the PERM labor certification, so the applicant does not have to undergo time-consuming recruitment and Department of Labor processes.
• Fewer Employer Involvement—The labor certification process involves the employer and can be time-consuming and expensive. EB2-NIW applicants are exempt from their employer’s approval; therefore, they can avoid this step.
• No Job Market Test—One aspect of EB2-NIW is that, unlike other employment-based green cards, there is no requirement to prove that there are no suitable U.S. workers to fill the job position.

The removal of the labor certification process in the EB2-NIW makes it easier for foreign professionals to obtain permanent resident status in the United States.

3. Faster Processing Time (Compared to Other Employment-Based Green Cards)

As with any green card, the processing times differ, but EB2-NIW is usually faster than most other employment-based green cards. This is because it does not follow the PERM labor certification process and is not based on employer support.

Comparison of Processing Times

EB-2 NIW – Processing typically includes:

• I-140 Petition—10 to 12 months (with the option of premium processing to expedite this process to 45 business days).
• Adjustment of Status (if inside the U.S.) – 6 to 12 months.
• Consular Processing (if outside the U.S.) – 8 to 14 months.

Therefore, if the visa numbers are available, EB2-NIW applicants can get their green cards in 1.5 to 2 years. Here you can check the available visas https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

EB-2 PERM (Standard EB-2 without NIW)

• PERM Labor Certification – 12 to 18 months.
• I-140 Petition – 6 to 12 months.
• Adjustment of Status or Consular Processing – 6 to 12 months.
• Total Time – 2.5 to 4 years (with the PERM process).
• EB-3 (Employment-Based Third Preference)
• PERM Labor Certification – 12 to 18 months.
• I-140 Petition – 6 to 12 months.

Adjustment of Status or Consular Processing: This may take a few years because of visa bottlenecks.

Total Time – 3 to 5+ years (depending on country of birth of the candidate).

Factors That Contribute to Faster Processing

No PERM Process—This helps the EB2-NIW applicants skip the labor certification process, which may take 12 to 18 months.

Priority Date Advantage—EB2 has shorter visa backlogs than EB3, so green cards are issued quickly, especially for applicants from countries with high demand.

Premium Processing Option—For EB2-NIW, USCIS rolled out premium processing in 2023, which means that I-140 can be approved within 45 days, reducing overall processing time.

For most workers, the EB2-NIW category is one of the quickest ways to get a green card, particularly for people from countries with few visa backlogs.

Application Process for EB2-NIW

The following is a step-by-step guide to the EB2-NIW application process, from document collection to filing petitions with the USCIS. Some differences include that EB2-NIW applicants can self-petition; they do not require an employer’s support.

Step-by-Step Guide to Filing EB2-NIW

Step 1: Determine Eligibility

Before that, the applicant must satisfy two main conditions: the basic EB-2 requirements of having an advanced degree or exceptional ability and the Matter of Dhanasar framework for the National Interest Waiver.

Step 2: Gather Supporting Documents

The applicants must gather the documents supporting the claims regarding their education, experience, accomplishments, and the significance of their work to the nation. (See Supporting Documents Required below.)

Step 3: Filing of the Form I-140 – Immigrant Petition for Alien Worker

The I-140 petition is the most important component of the EB2-NIW process. It is submitted to USCIS to show that the applicant can meet the criteria for EB-2 classification and the National Interest Waiver.

Ensure that you complete Form I-140. This is important because it contains details of the applicant’s background, work experience, and contributions that may be beneficial to the interest of the United States of America.

Provide Supporting Evidence – Supporting evidence includes academic transcripts, work experience, recommendation letters, and proof of the national significance of the applicant’s work.

File the I-140 Fee – The normal I-140 filing fee is $715 in 2024 plus Asylum Program Fee. Find out more here: https://www.uscis.gov/newsroom/alerts/guidance-on-paying-fees-and-completing-information-for-form-i-140-immigrant-petition-for-alien#:~:text=When%20you%20file%20Form%20I,we%20may%20reject%20your%20filing.

Choose Processing Speed—Premium processing is now available for EB2-NIW petitions. For an additional fee of $2,805, the petition will be processed within 45 days.

Step 4: Wait for USCIS Decision on I-140

The USCIS will review the I-140 petition and other documents. Processing times vary:

• Regular Processing – 6 to 12 months.
• Premium Processing – 45 days.

If the petition is approved, the applicant may file his or her Adjustment of Status (I-485) or Consular Processing. If USCIS denies a petition, the Request for Evidence (RFE) will be allowed to provide the required proof.

Form I-140 is the Immigrant Petition for Alien Workers.

Purpose of Form I-140

Form I-140 is filed to seek an adjustment of status for an employment-based green card. The EB2-NIW category remains the main petition, proving that the applicant is entitled to the National Interest Waiver.

Key Sections of Form I-140

• Part 1: Applicant’s details.
• Part 2: Petition type (EB2-NIW applicants select “self-petition”).
• Part 3: Details of the applicant’s education, including an advanced degree or exceptional ability.
• Part 4: Employer details (optional for EB2-NIW applicants).
• Part 5-6: Signature and declaration.

After approval, the applicant may continue with Form I-485 if in the United States or Consular Processing if outside the United States.

Optional Concurrent Filing with I-485 (Adjustment of Status)

What is Concurrent Filing?

If an applicant is already in the U.S. with a valid visa and a green card is available immediately for the applicant’s country of birth, the applicant can file I-485 together with I-140. This is referred to as concurrent filing.

Benefits of Concurrent Filing

• Faster Processing—It enables applicants to apply for status adjustment without having to wait for approval of I-140.
• Work and Travel Authorization—Applicants are also allowed to apply for an Employment Authorization Document (EAD) and Travel Document (AP) to work and travel while waiting for their green card.
• Reduces Holdup – It decreases the total time spent processing green card applications.

When Can You File Concurrently?

• It will be vital to check the Visa Bulletin. For the applicant’s country of birth, an EB2 green card must be available.
• However, if there is a visa backlog, the applicant should not file I-485 until their priority date becomes current.

Alternative Option: Consular Processing

If the applicant is out of the United States, he or she is not in a position to submit Form I-485 and rather has to go for Consular Processing, through which he or she has to attend an immigrant visa interview at the U.S. embassy or consulate.

Supporting Documents Required

To support an EB2-NIW petition, the applicant should submit many documents to the USCIS. These documents fall into three categories:

1. Evidence of EB-2 Eligibility

All the applicants must show they qualify for the EB-2 classification based on an advanced degree or exceptional ability.

For Advanced Degree Applicants:

Certificate and translation of the master’s, Ph.D., or an equivalent degree.

The minimum education requirement is a bachelor’s degree, and work experience is five years of progressive work experience (letters from employers verifying experience).

For Exceptional Ability Applicants:

• Evidence meeting at least three of the six USCIS exceptional ability criteria, such as:
• Work experience (10+ years).
• Professional licenses or certifications.
• Proof of high salary.
• Membership in professional associations.
• Awards or published materials about the applicant’s work.

2. Evidence of National Interest Waiver (NIW) Criteria

To qualify for the NIW, applicants must submit documents proving they meet the Matter of Dhanasar framework:

Substantial Merit and National Importance:

• Research papers, patents, or publications.
• Examples of work in an area of study deemed important to the United States (STEM, Healthcare, Business Innovation, etc.).
• Any report, funding grant, or media article that shows the importance of the applicant’s work.

Well-Positioned to Advance the Work:

• Resume/CV showing expertise.
• Recommendation letters from industry leaders.
• Samples include previous recognition received, previous positions held, etc.

Balancing Test (Benefits the U.S.):

Documentation that the applicant’s work will benefit the U.S. economy, healthcare, education, or national security.

The U.S. government should exempt the job offer and the labor certification.

3. Additional Supporting Documents

• Government Forms:
• Form I-140 (required).
• Form I-485 (if filing concurrently).
• If needed for work authorization, applicants will need to submit Form I-765.
• The form is I-131 (if the applicant needs travel authorization).

Copy of Passport: The passport used must be valid.

Proof of Legal Status in the U.S. – If adjusting status from within the United States (visa copies, I-94 record).

Filing Fee Payments: Copies of checks or receipts of I-140 and I-485 fees must be filed.

Common Challenges and How to Overcome Them in EB2-NIW Applications

The EB2-NIW is a unique way for foreign nationals to obtain their green card in the United States without having their employer as their sponsor. However, almost every applicant experiences difficulties in the course of application, including but not limited to proving the national interest of their work, RFEs, and dealing with denials and appeals. Knowing these challenges an applicant faces and how to deal with them will increase the chances of an applicant being approved.

1. Proving National Interest Impact

However, one of the biggest challenges of the EB2-NIW petition is the applicant’s ability to demonstrate that his/her position will benefit the United States nationally. In the Matter of the Dhanasar decision, applicants must prove that their work has “substantial merit and national importance.”

Common Challenges:

• Lack of Clear National Importance: Some applicants find it difficult to show how their work significantly affects the U.S. rather than a particular employer or a specific community.
• Insufficient Documentation: Weak papers will not be considered, and mere speculations about future contributions are likely to result in the application’s denial.
• Industry-Specific Barriers: Some areas are easy to define as crucial for the nation, such as medical research, AI, and cybersecurity, while others, such as business development and social sciences, may be less obvious.

How to Overcome This Challenge:

Use Data and Expert Opinions:

• Include data documentation and/or studies (e.g., economic benefits assessment, governmental research) that can show that the issues treated in your work are relevant to the national agenda.
• Enclosed are recommendation letters from scholars in the field attesting to the importance of the contributions made by the applicant.

Show a Broader Impact:

• Explain how your work also concerns not only a specific employer but also the industry, the government, the public, or national security.
• Share the evidence of the media coverage, patents, or awards received in connection with your work.

Align with U.S. Priorities:

Use the policies or strategies of the government of the United States (for example, White House reports, Department of Energy policies, or NIH medical research priorities) to explain how your work relates to the country’s goals.

2. Addressing Requests for Evidence (RFE)

An RFE is a notice given by USCIS when an application is incomplete or when USCIS needs more information about the application. It is not a denial, but it means that the application is put on hold, and the applicant must make a very powerful statement.

Common Reasons for RFE:

• Insufficient proof of national interest impact.
• Poor recommendation letters that are not well detailed.
• Inadequate evidence of exceptional ability or advanced degree.

How to Overcome This Challenge:

Carefully Review the RFE Notice:

USCIS will clearly state what more documentation is required. Understanding their concerns is crucial.

Submit Stronger Supporting Evidence:

• If USCIS needs more evidence of the national impact, submit the published work, policies, specifications, or opinions of relevant experts.
• If qualifications concern education, provide translation of certificates, diplomas, and letters from employers about working experience.

Strengthen Letters of Recommendation:

• The following are ways that you can get recommendation letters from professionals who can clearly explain why your work will be beneficial to the United States: professors from reputable universities, leaders in industries, and government officials.
• Ensure that letters contain examples of how the applicant contributed to the field.

Meet the Deadline:

RFE responses are due by the stated deadline (usually 87 days). If no response is received, the application is automatically denied.

3. Handling Denials and Appeal Options

When an EB2-NIW petition is denied, applicants must consider certain things when selecting their future course of action. There are rejection cases based on lack of substantial proof, failure to fulfill the necessary conditions, or USCIS discretion.

Common Reasons for Denial:

• Lack of evidence of national interest in the work being done.
• There is very little evidence of being well-placed to progress the work.
• There is limited information regarding why the labor certification should be waived.

How to Overcome This Challenge:

Understand the Reason for Denial:

USCIS will send a denial notice stating the reasons for the petition’s denial. Take the time to read this notice and look for flaws in your application.

Reapply with a Stronger Petition:

• If the denial was based on a lack of evidence, applicants could file a new EB2-NIW petition with better documentation, recommendation letters, and expert references.
• Answer any concerns raised in the previous denial while presenting new and stronger reasons.

File a Motion to Reopen or Reconsider (MTR):

• If you think that USCIS made a mistake, you can apply for a Motion to Reopen (new evidence) or Motion to Reconsider (legal argument)
• This feature is helpful if you have new evidence not presented in the initial proceeding.

Appeal to the Administrative Appeals Office (AAO):

• In case you are Murdock v AAO and strongly believe that your case was wrongfully denied, you can appeal to the AAO within 30 days of denial.
• However, only a small percentage of cases are approved based on an appeal if the mistake made by USCIS was not blatant.

Consider Alternative Green Card Options:

• If EB2-NIW proves too difficult, applicants may explore:
• EB-1A Green Card for ‘Persons of Extraordinary Ability’ (with IS (International Recognition)) Green Card.
• An exception would be when an employee has a PERM-based EB-2 or EB-3 sponsorship (if employer sponsorship is an option).
• O-1 Visa (for individuals with outstanding achievements in science, business, or arts).

 

This text is for educational purposes only and is not a substitute for legal advice. The text does not claim to be correct or up to date. Please contact a lawyer if you have any legal questions.