EB-2 National Interest Waiver (NIW)

(Last updated 1/4/2017)

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.

  • EB-1 green card for managers, executives, and people with extraordinary achievements.
  • EB-2 green card for advanced degree holders and people with exceptional ability who obtain an NIW.

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.

However, on December 27th, 2016, the Administrative Appeals Office (AAO) revised the three prong approach to be more inclusive for a broader range of potential scenarios. The decision was called Matter of Dhanasar.

EB-2 National Interest Waiver Criteria (AAO):

1.  The first 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 through 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.

2.  The second 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.

3.  The final 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.

 NIW Processing Time

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.

National Interest Waiver Criteria for Physicians

For those physicians seeking an EB-2 visa, they must demonstrate that they’ll be working in an underserved area or at a hospital dedicated to the Veterans Administration (VA) within the U.S. for five years. These physicians will need to provide supporting evidence that their services will meet the minimum criteria.

EB2 National Interest Waiver Documents Checklist

As a recap, here’s a list of the document required:

  • Form I-140
  • Form ETA-750B
  • Evidence supporting that the applicant has an advanced degree or exceptional ability
  • Petition letter drafted by EB2 NIW lawyer
  • Letters of recommendation (see below)
  • Affidavits from leaders in your field
  • Evidence of past achievements, mentions or recognition
  • Documentation showing that a labor certification would adversely affect the national interest
  • Proof of 2+ years of experience in the area
  • An updated Resume
  • Evidence of memberships, publication citations, conferences or other articles

Letters of Recommendation

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.

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.

How to Prove That You Have Exceptional Ability

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 EB2. Here are some items that qualify:

  • Letters from past or current employers proving that you have a minimum of ten years of experience working in your field full-time.
  • Licensing or certification that enables you to practice your trade.
  • Evidence of having an exceptional salary that relates to your ability.
  • Maintaining a membership in an association of professionals that requires exceptional ability for membership.

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, yet you do not see your evidence listed here. Be sure to retain the services of an immigration attorney to learn if your evidence fulfils the requirements.

NIW Green Card FAQs

Take a look at some of the most frequently asked questions our NIW green card lawyers receive during consultations and other inquiries.

Q. 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 with the NIW from the interested sponsor can have a beneficial effect on the visa case.

Q. What is usually considered an advanced degree? 

The terms outlining an advanced degree (as characterized by USCIS) include a master’s degree or higher. Bachelor’s degrees are also considered the equivalent to a master’s when the individual has five years of experience to add.

Q. Must I live in the U.S. to apply for an NIW?

You are not required to be residing in the U.S. to apply for an NIW.

Q. 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.

Q. 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.

Q. 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.

Q. 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 EB2 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 EB2 green card.

Q. What is the EB2 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.

How Our Immigration Lawyers Can Help

It should be noted that although these 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.

One of our NIW green card lawyers can assist clients in determining whether they are eligible based on the criteria listed above. We 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.

Our 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 on of our experts, feel free to fill out this simple contact form to schedule your comprehensive consultation.