Unlock your path to permanent residency in the U.S. with the EB-2 National Interest Waiver (NIW) program. Designed for highly skilled professionals and individuals with exceptional abilities, EB-2 NIW offers a streamlined route to a green card, allowing you to pursue your career ambitions and contribute to the nation’s growth and development.
The Employment Based, Second Preference category (EB-2) requires company sponsorship. The employer files for a Labor Certification to show that employing a foreign worker will not negatively affect the local job market. This still remains the more common type of EB-2 petitions.
However, as described by USCIS, “Since 1990, the Immigration and Nationality Act (INA) has provided that a person of exceptional ability may obtain a waiver of the job offer requirement if USCIS deems such waiver to be in the “national interest.” A subsequent technical amendment extended the job offer waiver to certain professionals.This waiver provision applies only to the second preference (EB-2) classification for members of the professions holding advanced degrees and persons of exceptional ability.” This waiver of the job offer is known as the national interest waiver (NIW).
As stated in the Matter of Dhanasar precedent case, “On the one hand, Congress clearly sought to further the national interest by requiring job offers and labor certifications to protect the domestic labor supply. On the other hand, by creating the national interest waiver, Congress recognized that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest. Congress entrusted the Secretary to balance these interests within the context of individual national interest waiver adjudications.”
It is open to a wider range of individuals, rather than just those who are part of the small percentage who have risen to the very top of their field.
The standard for qualifying for the EB-2 NIW, whether based on the advanced degree requirement or exceptional ability requirement, is lower than that required to petition for an EB-1A.
Similarly to the EB-1A, the EB-2 NIW allows petitioners to bypass the labor certification process.
Premium processing is available for the EB-2 NIW subcategory. This guarantees a decision from the USCIS is a maximum of 45 calendar days.
After approval of the EB-2 NIW petition, there is a wait time that can last more than one year before the Adjust of Status or Consular Processing steps can begin. In other words, even after approval, you may need to wait up to a year or more before resuming the other steps needed to obtain the green card. The EB-2 NIW is considered a second preference employment-based visa. Priority dates for this type of visa also depend on an applicant’s country of origin. For this reason, the EB-2 NIW process has historically been longer than the process for an EB-1A.
U.S. master’s degree or higher or a foreign degree evaluated to be the equivalent of a U.S. master’s degree or higher; or
U.S. bachelor’s degree, or a foreign degree evaluated to be the equivalent of a U.S. bachelor’s degree, plus 5 years of progressive, post-degree work experience.
An official academic record showing that the beneficiary 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 letter(s) from current or former employer(s) showing that the beneficiary has at least 10 years of full-time experience in the occupation in which he or she is being sought;
A license to practice the profession or certification for a particular profession or occupation;
Evidence that the beneficiary has commanded a salary or other remuneration for services that demonstrates exceptional ability. (To satisfy this criterion, the evidence must show that the beneficiary has commanded a salary or remuneration for services that is indicative of his or her claimed exceptional ability relative to others working in the field);
Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
Evidence of membership in professional associations; and
In some cases, evidence relevant to one criterion may be relevant to other criteria. For instance, being in an exclusive, prestigious, professional association may be considered an evidence of recognition by peers, and a piece of evidence may thus satisfy these two criteria.
Once eligibility is established either as a member of the professions holding an advanced degree OR as a person of exceptional ability, if a waiver of the labor certification process is requested, then a showing of “national interest” is required.
The person’s proposed endeavor has both substantial merit and national importance;
The person is well positioned to advance the proposed endeavor; and
On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.
A mere reading of the Matter of Dhanasar, in our experience, usually leaves people with more questions since, more than likely, your profile does not look like Dr. Dhanasar’s. If you have questions regarding this EB-2 NIW process, you can schedule a call with us to get a proper assessment of your profile, have your specific questions answered and have a clear knowledge on what it takes to win.
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The Employment Based, Second Preference category (EB-2) requires company sponsorship. The employer files for a Labor Certification to show that employing a foreign worker will not negatively affect the local job market. This still remains the more common type of EB-2 petitions.
However, as described by USCIS, “Since 1990, the Immigration and Nationality Act (INA) has provided that a person of exceptional ability may obtain a waiver of the job offer requirement if USCIS deems such waiver to be in the “national interest.” A subsequent technical amendment extended the job offer waiver to certain professionals.This waiver provision applies only to the second preference (EB-2) classification for members of the professions holding advanced degrees and persons of exceptional ability.” This waiver of the job offer is known as the national interest waiver (NIW).
As stated in the Matter of Dhanasar precedent case, “On the one hand, Congress clearly sought to further the national interest by requiring job offers and labor certifications to protect the domestic labor supply. On the other hand, by creating the national interest waiver, Congress recognized that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest. Congress entrusted the Secretary to balance these interests within the context of individual national interest waiver adjudications.”
Unlike in the EB-1A where the law described what “extraordinary ability” means and even went ahead to list 10 regulatory criteria, neither the INA nor the regulations define the term “national interest”.
The burden rests with the petitioner to establish that the waiver of the job offer requirement is in the national interest. USCIS considers every petition on a case-by-case basis.
USCIS may grant a national interest waiver as a matter of discretion if the petitioner demonstrates eligibility by a preponderance of the evidence, based on the following three prongs:
This is the famous 3-prong test that you may have heard about. It was codified in the Matter of Dhanasar case.
So, the Employment Based, Second Preference with a request for the waiver of the labor certification in the national interest is simply referred to as the EB-2 NIW. This pathway allows foreign nationals with “exceptional ability” in the arts, sciences, or business, or who hold advanced degrees in these fields, to bypass the standard labor certification process required for most employment-based visas.
Because they do not need a job offer, and thus a labor certification from an employer, this pathway allows individuals to self-petition. Instead, they must demonstrate their qualifications and the significance of their work to the national interest. Successful applicants can obtain lawful permanent residency (green card) in the United States.
The term “exceptional ability” is defined by law as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” This standard is lower than the standard for extraordinary ability classification.
A petitioner may be granted a national interest waiver at the discretion of USCIS if they demonstrate eligibility by a preponderance of the evidence, based on the three prongs discussed in the eligibility section of this website.
To establish exceptional ability, the evidence submitted with the petition must comprise at least three of the six regulatory criteria. For detailed information, refer to the eligibility section on the website.
To establish a professional with an advanced degree, refer to the eligibility section on the website.
Matter of Dhanasar is the precedent case (framework) for evaluating National Interest Waiver (NIW) petitions under the EB-2 immigrant visa category.