What is an EB-2 NIW visa?

Is an employment-based visa intended for those who either have an advanced degree or exceptional ability. Applicants who fall into one of these categories and whose employment would be in the national interest of the United States may apply for a national interest waiver (NIW) as a part of their EB-2 petition. With an EB-2 NIW visa, the applicant is considered a lawful permanent resident of the United States.

To apply for an EB-2 visa, the applicant will first need to file Form I-140 (officially called the “Immigrant Petition for Alien Worker”). The NIW allows the applicant to file this petition on their own behalf — without a job offer and without first acquiring a permanent labor (PERM) certification.

In this guide, we’ll primarily discuss the eligibility requirements of the EB-2 NIW visa and how to meet them.

EB-2 NIW Processing Times

In this section, we’ll go over the processing times for an EB-2 NIW visa.

For Form I-140, the processing time can take anywhere from 10.5 to 26.5 months, depending on where the applicant is filing from. After the applicant receives a notice of approval, they will then need to check the U.S. Department of State’s Visa Bulletin to see whether a green card is available. 

Once a visa becomes available, the applicant may start the green card application process. If applying from within the United States, they will need to submit Form I-485. Waiting times vary depending on the location, but it can take more than 2 years for USCIS to process the application.

Note: If a permanent resident card is available immediately, the applicant can submit I-140 together with the green card application, which might help save time.

For an up-to-date look at processing time estimates, check out the USCIS processing times tool. If you’ve already submitted and you want to check the status of your case, you can do so on the USCIS website.

Background

In its 1998 decision, titled Matter of New York State Dep’t of Transportation (NYSDOT), U.S. Citizenship and Immigration Services’ (USCIS’) Administrative Appeals Office (AAO) developed a three-pronged framework for reviewing NIW petitions. According to that framework, USCIS officers were to assess:

• Whether the job in question was of “substantial intrinsic merit”
• Whether the applicant’s work, and the benefits thereof, would be “national in scope”
• Whether a PERM certification requirement would negatively impact the national interest

In their 2016 decision, titled Matter of Dhanasar, AAO found these criteria lacking. Regarding the first requirement, they found the word “intrinsic” unnecessary and misleading. As for the second, the administrative panel determined that the phrase “national in scope” leant itself to a purely geographic interpretation. Finally, the third prong — having 4 separate definitions scattered throughout NYSDOT — was particularly confusing and redundant. It effectively required the applicant to submit evidence similar to that needed for the PERM certification, which the waiver was meant to override.

EB-2 NIW Eligibility Requirements

In this section, we’ll discuss the requirements for obtaining an EB-2 national interest waiver.

National Interest Waiver

To successfully obtain an NIW, the applicant must show:

• That their proposed endeavor is of “substantial merit and national importance”
• That they are “well-positioned” to execute their proposed endeavor
• That, on balance, it would be in the national interest to waive the job offer and PERM certification requirements 
  • By “on balance,” USCIS means that the benefits of the certification are outweighed by the benefits of the NIW
  • See FAQ for a brief explanation of the PERM certification

“Substantial merit” may be shown in a variety of different fields including education, health, culture, technology, science, entrepreneurialism, and business. The applicant doesn’t need to demonstrate the economic benefits of their work but may, instead, frame their proposal in terms of its broader impact on the social good.

The applicant’s proposed endeavor also does not need to affect the entire geographical area of the United States. Bringing a large number of jobs to an economically devastated region, for example, could be seen as an endeavor of national importance, despite its local scope.

Moreover, it’s not necessary to show that the endeavor is “more likely than not to ultimately succeed.” The applicant need only demonstrate that they are “well-positioned” to successfully execute their project. This means the applicant doesn’t need, for instance, an established, successful company to apply for the NIW. That being said, having a company with a longstanding history of success may bolster their case.

Advanced Degree or Exceptional Ability

In addition to the above, the applicant must show that they have either the foreign equivalent of an advanced degree or an exceptional ability. For the latter, they must possess “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” And for the former, they must have, at minimum, the equivalent of a master’s degree, or alternatively, the equivalent of a bachelor’s degree with 5 years of post-bac work experience.

Note: 

It’s important to be sure that the advanced degree is actually equivalent to its U.S. counterpart. For example, in certain countries a law degree can be obtained at the baccalaureate level and, therefore, would not be considered an advanced degree. To confirm the equivalence of their degree, applicants can use a credential evaluation service, such as World Education Services or Education Credential Evaluators.

EB-2 NIW Evidence

There are no supported documents listed in the relevant statutes, which means USCIS officers must make their decisions on a case-by-case basis. That being said, USCIS does provide some guiding principles that may prove useful.

For instance, to determine whether the applicant is “well-positioned” to execute their plan, officers may consider a range of different factors, including:

• Education level
• Skills
• Official record displaying success in the applicant’s field
• Applicable knowledge
• A well-drawn plan outlining the path forward
• Any records showing progress made toward accomplishing the applicant’s goal
• Demonstrable interest shown by shareholders, users, customers, or other types of stakeholders

To determine whether the applicant meets the third criteria — whether bypassing the PERM certification requirement would be beneficial to the United States — officers can consider factors such as the following:

• Whether it would be practical for the applicant to secure a job offer or labor certification given the nature of their skillset
• Whether the United States would benefit from the applicant’s work, regardless of its impact on U.S. workers in a similar field
• Whether the United States urgently requires the applicant’s skill set

Here are some examples to illustrate how the applicant might use these factors to build a case:

Using the first factor, entrepreneurs could argue that it would be impractical (if not illogical) for a business owner to secure a certification or job offer. With respect to the second factor, applicants may argue that their work is so important for the betterment of the social good that it doesn’t matter whether U.S. citizens are already advancing similar projects. Finally, scientists may contend, on the basis of the third factor, that their work is urgently needed to save lives or prevent illness.

Evidence for NIW

With these guiding principles in mind, the applicant can begin to gather evidence specifically for the National Interest Waiver. Evidence might include:

• Pertinent data
• News articles or other media demonstrating the applicant’s impact on their field and the national importance of their endeavor
• Academic research
• Complete project plan showing how the applicant will advance the goals of their endeavor
• Letters written by experts in a relevant field (see FAQ for more details)
• Any concrete proof of contributions to the field 
  • This might include awards, conference papers, patents, or any other form of official acknowledgement.
• Resume
• Degrees

In addition to these, entrepreneurial applicants may include in their petition:

• Evidence of start-up capital
• Letters of intent
• Proof of contracts

As the applicant gathers evidence, they should make sure that they’re building a narrative addressing each of the 3 NIW criteria.

In addition to the documentation listed above, the applicant will also need to gather evidence showing they have either an advanced degree or an exceptional ability. We’ll discuss each below.

Evidence for Advanced Degree

If applying under the advanced degree category, the applicant will need to have 1 of the following:

• A diploma and transcripts showing that they have obtained the equivalent of a master’s degree or higher
• A diploma and transcripts showing that the applicant has obtained the equivalent of a bachelor’s degree — with letters from employers showing 5 years of post-bac work experience 
  • The letters should demonstrate that the applicant improved their skill set during those 5 years

If the applicant has an advanced degree (or equivalent) they should strongly consider taking this route. As we’ll see, the exceptional ability category is a bit more complicated.

Evidence for Exceptional Ability

To qualify for the exceptional ability category, the applicant must be able to provide at least 3 of the following:

• An official academic record showing they have obtained a certificate, diploma, or degree from a university or school related to the exceptional ability
• Proof of payment for services related to the applicant’s ability
• A license (or certification) obtained by the applicant to practice their profession
• A membership at a relevant professional association
• Letters showing 10 years of full-time work experience in their given field
• Official acknowledgement — by peers, government agencies, or related organizations — of applicant’s contributions to the field
• Other relevant proof of eligibility

In addition to seeing the documentation, the USCIS officer will need to believe that the applicant has an exceptional ability. For this reason, the applicant should, if possible, provide more than 3 of the above-listed items. Put another way: it isn’t enough to simply present some documents; the evidence should be framed in such a way that it strengthens the applicant’s argument.