Ultimate Guide to the EB-2 (NIW) Visa
This ultimate guide for the EB-2 NIW visa will equip you with the necessary knowledge of the visa itself, especially how to qualify for the National Interest Waiver. Topics discussed include: the EB-2 visa, the National Interest Waiver, the required documents, how to minimize EB-2 NIW visa costs, the application process, application duration, pros and cons, and frequently asked questions about the EB-2 NIW visa.
What is the EB-2 Visa?
The employment-based (second preference) or EB-2 visa is open to individuals who are members of professions holding an advanced degree (or its foreign equivalent) or a person with exceptional ability. It is reserved for individuals with a job offer from a U.S. employer that requires an advanced degree or its equivalent or someone with exceptional ability in the sciences, arts, or business. As it is an immigrant visa, it grants the applicant permanent residence or a green card.
To be eligible as an applicant with an advanced degree, the job you are applying for must require an advanced degree (degrees above a Bachelor’s) or its foreign equivalent (a baccalaureate or equivalent foreign degree, and five years of post-baccalaureate, progressive work experience in the field). You also need to meet the other requirements specified on the labor certification.
In addition, you must also show evidence to prove your eligibility, such as official academic records and letters from current or former employers to prove at least five years of progressive post-baccalaureate work experience in your specialty. Doctoral degrees must be from the U.S. or at least be a foreign equivalent.
Note that an applicant who does not possess at least a U.S. bachelor’s degree or a foreign equivalent is automatically ineligible for the advanced degree classification.
To be eligible as an applicant with exceptional ability in the arts, sciences, or business, you must be able to prove that you have a degree of expertise that is significantly above that ordinarily found in your specialty in the sciences, arts, or business. You must also meet the requirements specified on the labor certification. In addition, you must meet at least three of the seven criteria below:
Official academic records showing your degree, diploma, certificate, or similar awards from college, university, school, or other institution of learning related to your specialty
Letters from current or former employers documenting at least ten years of full-time experience in your specialty
A license to practice your profession or a certification for your profession/specialty
Evidence that you have commanded a salary (or other remuneration) for your services demonstrating your exceptional ability in your specialty
Membership in a professional association
Recognition for your achievements or significant contributions to your field of specialty by your peers, professional or business organizations, or government entities
Other comparable evidences of eligibility
Note that the term “exceptional ability” is defined as a degree of expertise significantly above what is ordinarily encountered in the applicant’s field of specialty in the arts, business, or sciences.2 This standard is lower than the standard for the extraordinary ability classification.
Labor Certification
The EB-2 visa must be accompanied by a certified Application for Permanent Employment Certification from the Department of Labor (DOL) on ETA form 9089. Your U.S. employers must demonstrate the ability to pay your offered wage as of the priority date and continue until you obtain lawful permanent residency. To do this, your employer can use an annual report, federal income tax return, or audited financial statements demonstrating a continuing ability to pay your offered wage.
However, you can request to waive this requirement in the national interest by self-petitioning. Since the national interest waiver (NIW) waives the job offer requirement, you will not need to demonstrate an employer’s ability to pay your wage since you will self-petition for the EB-2 via NIW.
What is the National Interest Waiver (NIW)?
The National Interest Waiver (NIW) is a method of getting an EB-2 visa by self-petitioning. In other words, it is a way to obtain the EB-2 visa without having an employer’s sponsorship, as it waives the labor certification requirement for the EB-2 visa.
Applicants requesting to waive the job offer, and thus the labor certification, do so in the interest of the U.S. To qualify for NIW, the U.S. Citizenship and Immigration Services (USCIS) considers the following three factors:
The applicant’s proposed endeavor has both substantial merit and national importance. This can be shown in areas like technology, science, business, culture, health, or education. It does not need to be quantifiable evidence of economic impact. It is helpful to note that meeting this requirement does not ensure immediate approval, and the application will be reviewed on a case-by-case basis.
The applicant is well-positioned to advance the proposed endeavor. The applicant need not prove that their endeavor will succeed but rather that they have a plan for opportunities to succeed. Factors that impact this include relevant experiences and skills, educational background, a record of similar successes, current progress, and a plan for success.
It would benefit the United States to waive the requirement of a job offer and labor certification. This means that the benefits of waiving the job offer requirement outweigh the advantages of not waiving it.
Families or dependants of EB-2 Visa holders, such as spouses and unmarried children under 21 years, are eligible to apply for admission to the United States in the E-21 and E-22 immigrant status, respectively. The spouse may be able to apply for an Employment Authorization Document (EAD) to work in the U.S. during the process.
To summarize, here are the three ways to qualify for the EB-2 Visa:
Members of professions with a demonstrable advanced degree, and an employer who can demonstrate the ability to continually pay your wage
Individuals with proven exceptional abilities in their particular field, whether in the sciences, arts, or business, and an employer who can demonstrate the ability to continually pay your wage
Self-petitioning via the National Interest Waiver (NIW)
What are the requirements and documents needed for EB-2 NIW?
An NIW fast-tracks EB-2 applications for those who can provide evidence that their specialty is in the U.S.’s national interest, thus permitting the EB-2 applicant to attain an employment-based green card without having an employer. To ensure your application process goes smoothly, prepare the following key requirements or documents:
Advanced degree or exceptional ability. Ensure that you have an advanced degree or an exceptional ability in your field of work. This needs to be demonstrated or supported by documents, such as your academic records, publications, resume, recognitions or awards, and other relevant evidence demonstrating your advanced degree or expertise in your specialty above that of ordinary standards.
National interest. Ensure that your demonstrable exceptional ability or advanced degree is in the national interest of the United States. This can be demonstrated by providing evidence and documentation, such as your petition letter, publications and citations, resume, patents, awards or recognitions, letters of recommendation, affidavits from leaders in your field, memberships to associations, and other relevant evidence of your significant contribution to your field of specialty.
Necessary form. You must file an I-140 petition with the USCIS. You must attach all your supporting evidence, as previously mentioned.
Fees. Ensure that all required fees for filing the I-140 petition are paid. It includes $700 for the petition itself. Premium processing costs an additional $2,500 and ensures a response from the USCIS within fifteen calendar days of receiving your petition. If the applicant is already in the U.S. under a different visa and is applying for a change in status using the I-485 form, the fee is $1,225.
For those outside the U.S., you may be subject to additional fees via consular processing. Providing biometric information, i.e., fingerprints, is also part of the application process and costs $85. Fees are subject to change, so check the USCIS to ensure your information is updated. In addition, if you choose to work with an immigration attorney, you must also consider the fees associated with acquiring additional services. These can vary depending on the attorney hired and the complexity of your case.
Minimize your EB-2 NIW Visa Costs
Here are some ways to minimize your spending for your EB-2 NIW application:
Avoid mistakes! Be thorough and organized every step of the way to avoid mistakes that could cost you both time and money. It is easy to get rejected just by filing an incomplete or incorrect application, causing delays and additional expenses. Take the time to carefully review all your requirements and ensure that all of your supporting documents are complete and correct, and that all fees are paid for. Review and double-check every step of the way. It can be easy to forget signing where you need to sign, for example.
Opt for regular processing. Premium processing can be useful if you need to expedite your application. The key word here is need. Can you spare the time to wait? Consider forgoing premium processing to save money and pay $700 instead of adding $2,500 to expedite it.
Compare consular fees with the change of status fees. Adjustment of status can be expensive compared to applying in your country via consular processing, depending on circumstances. Check and see which option saves you money.
Consider doing it yourself. Hiring an immigration attorney is extremely helpful, especially for complicated cases, but it can also be expensive. Is yours going to be a complex case? Consider the facts. If you feel confident in your ability to navigate the entire process independently, it is a good way to save money. If not, immigration attorneys can save you the trouble for a fee.
What is the application process like for the EB-2 NIW Visa?
The steps involved in the EB-2 NIW visa application process generally involve the following:
You must first determine your eligibility. Do you have an advanced degree? Do you have an exceptional ability in your field, whether in arts, sciences, or business, and can you demonstrate that your specialty would be in the national interest of the United States? If your answer is yes, you are eligible.
Once you have determined that you are qualified, you must file a petition. The NIW is a self-petitioning method. You must file an I-140 petition with the USCIS and include your supporting documents, such as your academic degrees, publications in your specialty, letters of recommendation, and evidence of national interest.
Next, you must attend an interview. If the applicant is already in the U.S., i.e., under a different visa, they may be required to attend an interview with the USCIS. On the other hand, if the applicant is outside of the U.S., they will attend an interview at a U.S. consulate or U.S. embassy abroad.
Wait to receive a decision. After the interview, the USCIS will review your application to determine whether to approve or deny your EB-2 NIW visa petition.
Applying for the EB-2 NIW visa can be complicated and understandably frightening. However, as long as you ensure that your eligibility is solid and you have ample, qualifying supporting documents or evidence to that your exceptional ability or specialty is of national interest to the country (via a thorough and evidence-laden application), chances are you will be approved even if it takes some time.
How long does it take to acquire the EB-2 NIW Visa?
The EB-2 NIW visa typically takes between three to nine months. However, it varies depending on the assigned USCIS service center, the adjudicating officer, and your particular case and its complexity, as evaluation is on a case-by-case basis. It is advisable to consult an immigration attorney for a full breakdown of your case to request a realistic estimation.
However, with premium processing (via filing an I-907) for an additional $2,500, your processing time will be expedited to only fifteen calendar days. It is important to note that this does not increase your chances of approval; it merely greatly decreases your waiting time for a decision from months to a maximum of fifteen days.3
It is important to ensure you use the correct, updated I-907 form to avoid rejection, as filing the old form can waste your time, effort, and money.
What are the Pros and Cons of the EB-2 NIW Visa?
The EB-2 NIW visa offers several advantages and disadvantages for foreign applicants seeking to obtain a green card to immigrate to the U.S.:
Pros
A big advantage to the NIW is it waives the job offer and, consequently, the labor certification requirement. This makes the process easier for a highly-skilled applicant.
Since it does not require an employer or a job offer, the applicant can self-petition for their EB-2 NIW visa. They can file their own application without needing an employer to sponsor or file for them.
Applicants granted an EB-2 NIW visa are assigned a priority date, fast-tracking their place in line for a green card. This is helpful since green cards have quotas, and backlogs often cause long wait times.
Most importantly, the EB-2 NIW allows foreign nationals to seek employment from any employer in the U.S. in their field of expertise, making it flexible for those who may wish to change jobs or employers along the way. This is an extra benefit to self-petitioning.
Cons
A major disadvantage to the EB-2 NIW is it requires a rigorous and high-standard of proof to qualify for it in the first place. It is reserved for individuals with an advanced degree or exceptional arts, business, or sciences ability. It also requires evidence to prove such claims, such as awards, recognitions, and letters of recommendation from qualified third parties. On top of that, the applicant must demonstrate that their admission to the U.S. will be of national interest or benefit to the country.
It can be uncertain. There is no guarantee that the application will be approved or that the individual’s skills and exceptional ability will be deemed of national interest. Besides, the process takes a long time and can be subject to delays or additional requests for further evidence.
The visa is limited to certain qualifying professions in the arts, business, or sciences, such as members of certain professions like scientists, academics, and researchers. This restriction severely limits the eligibility of some foreign nationals seeking green cards who do not meet the visa’s criteria.
The applicant’s family must apply for their own visas or wait for the applicant to obtain their green card before joining them in the U.S., as the visa does not include family dependents in the application. Spouses can apply for the E-21 status, while unmarried children under 21 can apply for the E-22 status.
Frequently Asked Questions (FAQ) regarding the EB-2 NIW Visa
Here are some frequently asked questions about the EB-2 NIW visa:
What are the differences between EB-2 and EB-2 NIW?
For EB-2, a U.S. employer needs to petition for the foreign national applicant (beneficiary). The employer must obtain a labor certificate before filing Form I-140 for the beneficiary. In addition, the petition must establish the beneficiary’s qualifications as someone with either an advanced degree or exceptional ability in the arts, sciences, or business.
Meanwhile, the NIW allows the foreign national applicant to self-petition or file Form I-140 on their own behalf as the NIW waives the requirement of acquiring an employment offer and, subsequently, a labor certificate. Thus, foreign nationals self-petitioning for EB-2 NIW does not require an employer. They can apply independently so long as they demonstrate that their qualifications satisfy the NIW requirements.
What does the EB-2 NIW waive?
The NIW waives the labor certification process and, thereby, the necessity of having a U.S. job offer or employer.
Who qualifies for the EB-2 NIW?
To be qualified for the EB-2 NIW, you must first meet one of the two EB-2 requirements:
(1) EB-2 Advanced Degree. An advanced degree refers to degrees beyond a baccalaureate degree (including a U.S. or foreign Ph.D., a U.S. or foreign master’s, or MD/MBBS).
Otherwise, you must demonstrate that you have the equivalent of an advanced degree, such as a baccalaureate degree, plus five years of progressive work experience in your specialty. Although an EB-2 case will be stronger with a Ph.D., it is not a strict requirement.
(2) EB-2 Exceptional Ability. If you do not meet the advanced degree requirement, you can still satisfy the EB-2 requirement by demonstrating exceptional ability. To do so, you have to meet at least three of the following criteria:
Official academic records showing your degree, diploma, certificate, or any similar award from a college, university, school, or other learning institution related to your area of expertise.
Letters documenting at least ten years of full-time experience in your specialty.
A license to practice your profession or certification relating to your occupation or specialty.
Evidence that you have commanded a salary or other remuneration for services demonstrating your exceptional ability in your specialty.
Membership in a professional association.
Recognition for your achievements or significant contributions to your industry by your peers, professional or business organizations, or government entities.
Other comparable evidence.
You must also pass the three-prong test in the Matter of Dhanasar decision:
Your proposed endeavor is of substantial merit and national importance.
You are well-positioned to advance your proposed endeavor.
It would be in the United States’ benefit to waive the requirement of a job offer and the labor certification.
What is an “advanced degree” for the EB-2 NIW?
An advanced degree is a U.S. advanced degree (degrees above a Bachelor’s) or a foreign equivalent degree.
What if I only have a Bachelor’s degree and no post-graduate degrees?
Suppose the applicant only has a U.S. baccalaureate degree (or its foreign equivalent). In that case, they must also have five years of progressive, post-baccalaureate experience in their specialty to fulfill the requirement for an “advanced degree.” Otherwise, they will have to demonstrate “exceptional ability” instead.
What is an “exceptional ability” for the EB-2 NIW?
An exceptional ability refers to a degree of expertise significantly above that ordinarily found in your specialty in the sciences, arts, or business.
The law does not specify the definition of “exceptional ability,” but it requires the applicant to have a higher level of expertise in their specialty. To establish this, the applicant needs to meet at least three of the following:
Official academic records showing your degree, diploma, certificate, or any similar award from a college, university, school, or other learning institution related to your area of expertise.
Letters documenting at least ten years of full-time experience in your specialty.
A license to practice your profession or certification relating to your occupation or specialty.
Evidence that you have commanded a salary or other remuneration for services demonstrating your exceptional ability in your specialty.
Membership in a professional association.
Recognition for your achievements or significant contributions to your industry by your peers, professional or business organizations, or government entities.
Other comparable evidence.
What is a letter of recommendation for an EB-2 NIW petition?
A letter of recommendation is also referred to as a reference letter. It is written by an expert in the applicant’s specialty or by another authoritative individual in an allied or related field. They are essential in the petition for employment-based immigration benefits. Since adjudicating officers are rarely experts in your field, letters of recommendation are one way to objectively determine whether you qualify for the standards set in the Matter of Dhanasar decision.
Whom should I contact to obtain letters of recommendation?
You should obtain strong letters from your inner and outer circle peers, such as those you have directly worked with (either in academics or business).
Can I still apply for an NIW if I do not have any awards in my field?
Yes, you can still apply for an NIW. There is no specific requirement regarding having awards to obtain approval for an NIW application, although they improve your chances of approval. You can prove your case by providing other documentation instead that qualifies to prove the other prongs listed by the law.
What form should be used for the EB-2 NIW petition?
Form I-140.
Is a labor certification required for EB-2 NIW?
It is not required. The NIW waives the labor certification.
Is a job offer required for EB-2 NIW?
No job offer is required. The NIW waives it and enables the applicant to self-petition.
How can an EB-2 NIW petition be filed?
By mailing the I-140 form and supporting evidence to the appropriate service center.
Can an EB-2 NIW be withdrawn?
Yes, the petitioner or the Form G-28 representative may send a letter to request withdrawal to the USCIS.
If my EB-2 NIW petition is denied, how long do I wait to file under EB-2 NIW or other categories again?
The law does not restrict the time you can file your EB-2 NW petition after a denial. It does not bar you from submitting another petition as well. However, it is best to ensure your circumstances have improved before filing a petition again.