EB-2 National Interest Waiver Qualifications

Clearer guidelines for the EB-2 National Interest Waiver qualifications caused an uptick in its popularity.  This has been in part to the 2016 decision Matter of Dhanasar  where the Administrative Appeals Office (AAO) overturned nearly two decades of precedent on how an individual qualifies for a National Interest Waiver (NIW) under the Employment-Based Second Preference Category (EB-2).

Most EB-2 petitions require a valid, permanent job offer and a labor certification from the Department of Labor (DOL).  A National Interest Waiver gets rid of these requirements if the applicant has “exceptional ability” and will “substantially benefit prospectively the national economy, cultural, or educational interest or welfare” of the United States.  Thus, you can petition yourself without a job offer and labor certification.

How the National Interest Waiver Qualifications Changed

The Matter of Dhanasar decision clarified the guidelines to the national interest waiver standard.  Now, USCIS may grant a NIW if you show, by a preponderance of the evidence, that:

  1. Your proposed endeavor has substantial merit and national importance.
  2. You are well-positioned to advance the proposed endeavor.
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and a labor certification.

EB-2 National Interest Waiver Qualifications: Exceptional Ability

You must show that you have exceptional ability to get a National Interest Waiver.  Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”  You will need strong letters of recommendations from qualified third parties.   Strong letters of recommendation can help you explain how your endeavor will benefit the United States.  You must meet at least three of the criteria below:

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
  • Letters documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Other comparable evidence of eligibility is also acceptable.

EB-2 National Interest Waiver Qualification Myths

Many people are convinced that they qualify for an EB-2 National Interest Waiver based on misinformation they read or heard.  They hear stories from friends who applied as “an accountant” or “engineer.”  This friend got a work permit, a social security card and travel authorization.  He or she is now just waiting for the green card.

Make no mistake – getting a National Interest Waiver is not easy.  Right now, under the current Administration, is probably the hardest time to get it.  Unfortunately, misinformation about the NIW is causing people to spend time and money on something for which they do not qualify.  There are too many unqualified immigration service providers making guarantees and selling people false hope.   This problems is slowly unraveling as more and more people get denied.

Below are the top 3 myths about the EB-2 NIW qualifications:

Myth 1:  A qualifying degree is enough

A college degree alone is not enough for the EB-2 National Interest Waiver.  A degree just satisfies the educational requirement.  Someone with a bachelor’s degree plus 5 years of qualifying experience OR an Advanced Degree alone will probably get denied.

Myth 2:  Previous employment in a qualifying field is enough

Previous employment experience alone is probably not enough to get your national interest waiver of a job offer and labor certification.  You must have other achievements.  The work that you do and what you have to offer must be of interest to the United States.  You need to prove your credentials and experience.  It requires substantial evidence from others showing how you are one of the best in your field.

Myth 3:  A work permit means the EB-2 National Interest Waiver petition will be approved

If you are in the US, you can apply for the EB-2 NIW with adjustment of status.   The EB-2 NIW petition and adjustment of status application will be decided together.  The adjustment of status application includes an application for employment authorization and travel permit.  The employment authorization and travel permit applications are processed first.  If approved, the employment authorization and travel authorization arrive prior to the EB-2 NIW petition decision.

Getting work authorization and a travel permit has no bearing on the EB-2 National Interest Waiver petition.  Thus, the EB-2 NIW petition can still get denied.  You must be aware of this possibility and the consequences of a denial.  If you are denied, USCIS will send you a letter telling you why you were denied and will cancel your work permit.  They will give about 30 days to leave the country.  You can avoid this by only applying for the EB-2 NIW petition without adjustment of status.  You can talk to our immigration lawyers to decide if this is right for you.

Talk to an Immigration Lawyer

There are too many immigration service providers who claim to have a secret formula for success.  They often call themselves “immigration consultants” or “CEOs” that specialize in immigration.  These non-lawyers are all over the internet selling false hope.  They will tell you that you qualify for the EB-2 NIW after a quick consultation.   Most of them make promises they cannot keep.

Immigration to the United States is a long and difficult process.  You should be careful with guarantees and promises that sound too good to be true.  Ethical attorneys do not make guarantees about outcomes.  A good lawyer will give you realistic expectations and explain the pros and cons of your individual case.

Terra Immigration is a law office based in Orlando, Florida with experienced immigration attorneys.  We submit strong EB-2 National Interest Waiver applications on behalf of individuals from all around the world.  You can call us at (407) 818-1244 or send us a message by clicking here if you need an honest assessment of your EB-2 National Interest Waiver qualifications.  We speak English, Spanish and Portuguese.

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