Obtaining an employment-based green card can be a long and intensive process that usually requires job offers, labor certifications, and petitions. Each different preference level has its benefits as well as its disadvantages. Fortunately, two types of green cards 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.
What is EB-2 NIW
EB-2 petitioners can avoid the PERM Labor Certification process by establishing that the beneficiary should get a national interest waiver. The National Interest Waiver (NIW) allows a foreign national to self-petition and file an I-140 on behalf of themself without an employer’s involvement and a labor certification application.
For almost two decades, the Matter of New York State Department of Transportation (NYSDOT) severely limited the availability of national interest waivers. This case established a three-prong approach for determining whether a foreign national is eligible for a national interest waiver.
In 2016, the Administrative Appeals Office (AAO) revised the approach to be more inclusive for a broader range of potential scenarios.
EB-2 National Interest Waiver Requirements (AAO)
The first NIW requirement is that the alien must show that their endeavor has substantial merit and national importance. This merit can be shown in business, science, technology, health, culture, or education. There does not need to be quantifiable evidence of economic impact, though it may help your case.
Meeting this requirement does not create a blanket approval, and the U.S. government shall review applications on a case-by-case basis.
The second NIW requirement is that the foreign national must be able to advance the proposed endeavor. This means the AAO will look at factors such as:
- Educational background
- Experience, skills
- Record of similar successes
- Current progress
- Plan for success
Petitioners don’t need to prove that their endeavor will succeed but rather they can make it succeed.
The final NIW requirement is that the applicant present evidence that the U.S. would benefit on balance to waive the job offer criteria for an EB-2. “On balance” means that the advantages of waiving the job offer requirement outweigh the advantages of not waiving it.
Learn how to qualify for EB2 without an Advanced Degree.
EB-2 NIW Green Card Processing Time
The NIW green card processing time depends on several factors including the assigned USCIS Service Center and the adjudicating officer. Processing time for the I-140 can range from 10.5 to 26.5 months. As of June 2023, the average processing time for the I-140 advanced degree or exceptional ability requesting a National Interest Waiver (NIW) for the Nebraska service center is 11.5 months while the Texas service center is 12 months.
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.
EB-2 NIW Premium Processing 2023
Up until recently, applying for a NIW for the EB-2 meant you could not take advantage of premium processing. With premium processing, you pay an additional fee to expedite your visa or green card processing to just 15 calendar days. It does not increase your chances of approval.
However, while premium processing was available for others, it was not an option for the EB-1C or the EB-2 NIW. This meant there was no way to speed up the processing time for this category.
From January 30, 2023, premium processing will be available for all pending and new EB-1C Multinational Executive and Manager petitions and all pending and new EB-2 NIW petitions.
Before January 30, 2023, only EB-1C petitions with a receipt date of January 1, 2022, or earlier are eligible for premium processing; and only NIW petitions with a receipt date of February 1, 2022, or earlier are eligible for premium processing.
USCIS made expansions as part of its ongoing initiatives to reduce the backlog and streamline the processing of petitions. USCIS has expressed its objective of meeting the newly set cycle time goals by the conclusion of the fiscal year 2023.
As of July 1, 2022, you must use this I-907 form. USCIS will reject old forms.
National Interest Waiver Criteria for Physicians
Physicians seeking an EB-2 visa 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 must provide supporting evidence that their services will meet the minimum criteria.
EB-2 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 EB-2 NIW green card 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
You must file all of these documents concurrently with your petition to be eligible for the NIW green card. If your petition and ETA-750B are approved, you can move on to the next step only if your priority date is current.
Despite successfully obtaining a National Interest Waiver, you will still need to wait until your priority date is current. The priority date is the day that the USCIS receives your I-140 petition. You must check the monthly visa bulletin released by the Department of State to see if your priority date matches the final action date given in the EB-2 category for your country of origin. For some countries, the priority date takes several years to become current, but it can be no time for others.
Once your date is current, you can either adjust your status if you are in the U.S. under a valid nonimmigrant status or go through consular processing if you don’t have a valid status. Adjusting your status requires filing an I-485 form and waiting for approval. Consular processing involves making an appointment with a U.S. Consulate or Embassy in your home country and participating in a one-on-one interview with a consular officer. In either case, you will have your NIW green card after approval!
Letters of Recommendation
Letters of recommendation or support letters help reinforce your NIW case if they can demonstrate national interest and 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.
However, it is essential to note that the USCIS will place different weight on letters of recommendation depending on who wrote them. For example, letters from peers and colleagues will hold less weight than letters written by esteemed contemporaries that did not have a hand in your work.
As it stands, there is no minimum nor maximum number of recommendation letters that are required. If you choose to include them, they should be 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 and their titles and employers.
How to Prove That You Have Exceptional Ability
To put the NIW into perspective, we need to understand the purpose of the PERM Labor Certification. The PERM is designed to protect American jobs and mitigate the amount of job outsourcing. This is why U.S. employers must offer the prevailing wage and determine that no qualified U.S. workers are available to take the position.
Your endeavor must be beneficial enough to warrant waving this protective policy. In essence, this is what the regulations mean when they say that the U.S. must benefit “in the balance.” The positive impact of your endeavor must outweigh the benefits of the PERM.
If you do not possess an advanced degree or its equivalent, then you must provide evidence that you have exceptional ability to qualify for your EB-2. 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 membership in an association of professionals that requires an 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, but do not see your evidence listed here, be sure to retain the services of an immigration attorney to learn if your proof fulfills the requirements.
EB-2 NIW Cost and Filing Fees
The filing fees for the EB-2 NIW are as follows:
- I-140 Immigrant Petition for Alien Worker: $700
- I-485, Application to Register Permanent Residence or Adjust Status: $1,140
- Biometric fee: $85 (if applicable)
- DS-260 filing fee: $325
- Premium processing fee (optional): $2,500
- Legal fee (optional): You should also factor in the legal fee if hiring an immigration attorney, which is very important. This is negotiable between you and your attorney.
What If My NIW Is Denied?
Like anything else in immigration law, there is always the possibility that your petition will not be approved. If you’ve experienced an NIW denial or are looking to avoid it, here are some common reasons:
- Filing too much evidence – if you bog your case down with excessive documents, your evaluating officer will likely miss the more critical evidence.
- Not advocating your case well – remember it’s not enough to simply state your qualifications. You also need to argue them in a way that makes you eligible according to the regulations.
- Poor reference letters – make sure your letters of recommendation are experts and can back up their information with facts about your work.
If your NIW was denied, you can choose to make a legal motion to reopen or reconsider your case, you can appeal to a third party (the Administrative Appeals Office), or you can consult your immigration attorney to see if there is another green card option available to you. You don’t want to take any legal action against the evaluating officer without an attorney to guide you.
The legal motions of reopening or reconsidering are essential appeals to the evaluating officer. In a motion to reopen, you are asking the officer to take a second look at your case in light of new evidence that has come to light. For a motion to reconsider, you demonstrate that the evaluating officer was incorrect in their decision to deny your NIW green card case. It is important to note that these are delicate legal procedures and should not be attempted without the help of an immigration attorney.
Check out this guide on Changing Jobs After NIW Approval.
NIW vs. PERM
If you are wondering whether you should take the NIW or PERM path to a green card, or if you are just wondering what the difference between these two documents is, let’s review them.
The PERM Labor Certification is a Department of Labor process to protect the jobs of current U.S. workers. It serves to help prevent employers from hiring large numbers of green card holders and replacing their workforce with less expensive labor.
To get a PERM, an employer must place a job order with the state and advertise for the position through several channels for at least 30 days. The employer also needs to interview potential applicants and give a reason for denying each one. Only if no qualified candidates apply can the PERM be obtained, allowing the beneficiary to get a green card.
The PERM is required for all EB-3 petitions and most EB-2 petitions. The only way to avoid this requirement for the EB-2 is through the National Interest Waiver.
The advantages of the PERM are that you can obtain an EB-3 with one and do not have to prove that your work is in the national interest to qualify. However, the disadvantages of the PERM are that you must have a sponsoring employer and a full-time job offer. Also, the DOL may choose to audit the PERM or enact supervised recruitment, which can slow the process down for nine months or more.
The advantages of the NIW are that the PERM process is waived by going through the NIW process. You can self-petition, and you do not have to have a job offer. However, NIW cases are subjected to higher scrutiny.
Check out this NIW vs. PERM Labor Certification guide.
NIW Green Card FAQs
Look at some of the most frequently asked questions VisaNation NIW green card lawyers receive during consultations and other inquiries.
Q. What is the difference between regular EB-2 and EB-2 NIW green card petitions?
The difference is that you need an employer to sponsor a regular EB-2 visa while you can sponsor your EB-2 NIW yourself. The employer must also obtain a labor certification before submitting an I-140 petition on your behalf. On the other hand, an NIW allows you to file your I-140 directly to the USCIS.
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 by the NIW from the interested sponsor can benefit the visa case.
Q. What is usually considered an advanced degree?
The terms outlining an advanced degree (as characterized by USCIS) include a United States master’s degree or higher or a foreign equivalent degree.
Q. What if I only have a bachelor’s degree?
Bachelor’s degrees are also considered the equivalent to a master’s when the individual has five years of progressive experience to add. The experience must be in the specialty or field you are applying for.
Q. Do I have to possess an advanced degree and exceptional ability to qualify for an NIW?
No, you only need to meet the requirements for one of the two criteria. Though meeting the USCIS definitions of the two National Interest Waiver requirements will be advantageous, it is not compulsory. With either of the two and a convincing petition, prepared by an experienced EB-2 immigration lawyer, you should be good to go.
Q. I haven’t published any articles in journals in my field. Can I still apply for EB-2 NIW?
Yes, you can still apply for an NIW even if you don’t have any published work. The published article requirement is just one of the many criteria the USCIS gives. If you have the academic qualification and/or years of industry experience stipulated for NIW, you may still qualify without the evidence of a published article.
The same applies to the “Awards and Professional Membership” criteria. It is not mandatory to have all these before you can qualify. The USCIS allows those with “comparable evidence of eligibility” that are not exactly as listed on the website to file an NIW petition. The most important thing is how compelling the petition is.
Q. Must I live in the U.S. to apply for an NIW?
You are not required to reside in the U.S. to apply for an NIW. However, if you are not in the U.S. when you petition for your EB-2, you cannot adjust your status to that of a legal permanent resident. Instead, you must go through consular processing for your green card.
Q. Is there a minimum number of letters of recommendation needed?
While no minimum number is required, the more evidence you submit that demonstrates qualification, the stronger your case will be.
Q. Can I apply for an NIW if I have a pending labor certification with the DOL?
Yes, you may still apply for NIW even if you have a labor certification pending. Two different organizations handle the PERM labor certification and the NIW. While your labor certification is filed with the DOL, the agency that will process your NIW is the USCIS. So, one does not stop the other. It is another way tto boost your chances for approval, in that if your labor certification is denied, you will still hope to possibly get the NIW petition approved.
Q. Can I apply for an NIW if denied a labor certification?
Assuming you meet the qualifications for an NIW, your previous denial should not impact the outcome. There are several reasons for your PERM to be denied, including 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 to apply.
Q. Do I need an advanced degree to apply for an NIW?
While having an advanced degree for an NIW is not a strict requirement, having one can go a long way in helping your EB-2 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 exceptional ability to qualify for the EB-2 green card.
Q. What is the EB-2 NIW Processing Time?
You can generally expect NIW processing time for the USCIS to adjudicate applications to take anywhere between 3 and 9 months. However, it is always possible to take longer if USCIS issues you a Request for Evidence (RFE). If you receive an RFE, it is essential 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.
Q. What is EB-2 NIW RFE?
The USCIS issues requests for additional evidence (RFE), requesting more information from a visa applicant. It is usually given when the USCIS is not convinced that an NIW applicant meets the criteria needed to prove that they are qualified for the visa. This should not be mistaken for denial or rejection.
The recipient of an RFE will only be required to provide some items that appear missing in their petition. If you receive an RFE, you will be given a timeframe for the requested information. It is always best to consult an immigration lawyer to help look into the details of the request and guide you on how to answer it. you must handle an RFE carefully, as there will be no second chance.
Q. Is an EB-2 NIW the only avenue for getting an employment-based green card without a labor certification?
No, there is also the EB-1, the first preference employment-based green card. Like the EB-2 NIW, EB-1 applicants do not need a labor certification. Also, if you qualify for the extraordinary ability subcategory of the visa, you will not need a job offer or employer, and can self-sponsor your petition.
Q. Which should I go for between the EB-1 and the NIW?
The answer will depend on which green card you qualify for the most. Note that the two categories are completely different visas. Each has its peculiarities. Also, the overall approval rate for the EB-1 appears to be lower. This, perhaps is the reason, why many people choose an NIW over EB-1 even when they have the credentials that may qualify for both.
But if you are still unsure which to settle for, you can file the NIW and EB-1 concurrently. The USCIS allows applicants to submit petitions for the two visas simultaneously if they meet the criteria for both. This will be an opportunity to improve the likelihood of getting approval from at least one of the two categories. It is possible to receive approvals from the two petitions. But then, you should weigh your options and make an informed decision.
How VisaNation Law Group Lawyers Can Help
Although it seems easy to meet the National Interest Waiver, USCIS allowing a particular profession to qualify in the past does not mean you don’t have have attention to detail and meet qualifications.
VisaNation Law Group NIW green card lawyers can assist clients in determining whether they are eligible based on the criteria listed above. They can also help you find evidence to prove your exceptional ability and your endeavor’s positive impact on the U.S. economy.
VisaNation attorneys have extensive experience with complex employment immigration cases and can assist you with any complexities that may arise with your NIW case. Book consultation today with a VisaNation attorney for a comprehensive evaluation of your eligibility for an EB-2 NIW green card.