EB2 NIW VISA

Employment based 2 | Immigration Lawyer

The EB2 National Interest Waiver (NIW)

The Employment Based second preference category of visas (EB2) are for professionals with an advanced degree or who have exceptional ability in the arts, sciences, or business. These individuals have the option of pursuing a green card through employment sponsorship or through a national interest waiver (NIW).

The EB2 National Interest Waiver, commonly known as EB2 NIW, is an employment-based visa that allows you to self-petition for a green card without an employer.  It is for individuals who have advanced degrees and exceptional ability in the sciences, arts, or business.

When you submit an EB2 NIW petition, you are asking the government to waive the Labor Certification process. The EB2 National Interest Waiver petition shows that it is in the national interest of the United States to give you a green card.

Over the last few years, an EB2 National Interest Waiver has become a desirable option for qualifying individuals wishing to get a green card. This option is desirable because it does not require employment sponsorship. In other words, you can ask the government to waive the requirement of a job offer and sponsor yourself.

What is a National Interest Waiver?

The EB2 National Interest Waiver, commonly known as EB2 NIW, is an employment-based visa that allows you to self-petition for a green card without an employer.  It is for individuals who have advanced degrees and exceptional ability in the sciences, arts, or business.

When you submit an EB2 with a National Interest Waiver you are asking the government to waive the Labor Certification process. The national interest waiver shows that it is in the national interest of the United States to give you a green card.

What is an EB2 Advanced Degree?

An Advanced Degree is a Master’s Degree or higher.  You can also qualify for an EB2 Advanced Degree with a Bachelor’s Degree plus 5-years of progressive experience after obtaining your degree and diploma.  A foreign equivalent degree is also acceptable.

What is the Difference between EB2 NIW and EB2 Exceptional Ability?

The biggest difference between the EB2 NIW and the EB2 Exceptional Ability category is the Labor Certification.   Labor Certification requires an employer to test the job market and sponsor you for a green card.  When you ask for a national interest waiver, you are telling the government that you do not need a job offer and Labor Certification.   A National Interest Waiver does away with this requirement and allows you to sponsor yourself.

EB2 National Interest Waiver Requirements

In 2016, the United States Citizenship and Immigration Services (USCIS) Administrative Appeals Office issued guidance on the requirements for a national interest waiver. To get a National Interest Waiver, you are required to meet the following three prong test from the 2016 case called Matter of Dhanasar. The three-prong test is as follows:

  1. You must prove that what you plan to do in the United States (your proposed endeavor) has substantial merit and national importance
  2. You are well-positioned to advance your proposed endeavor, and
  3. On balance, it would be beneficial to waive the job offer requirement and Labor Certification requirements.

How do I get a National Interest Waiver?
Matter of Dhanasar Explained:

The first prong of Matter of Dhanasar requires proof that your proposed endeavor has substantial merit and national importance.  Substantial merit can encompass many fields of expertise. A national interest waiver substantial merit example is work in fields that are valuable to the United States. Research, academics, product development, are all examples of work that has substantial merit.

An endeavor has national importance if it is significant and will have a ripple effect throughout the United States. A national interest waiver example can be an entrepreneur’s proposal of an endeavor that will create jobs and have an economic impact in the United States.  Engineers can propose an endeavor that will improve bridges and tunnels, thus improving transportation and safety in the United States. A doctor can propose a new method of treating a certain ailment, thus improving the health of Americans.

In the second prong, the government wants to know if you are well-positioned to advance your endeavor. They will focus on your unique skills, abilities, and qualifications to make this determination. You fulfill this step with evidence of your previous success, awards, impact you have made, the steps you have taken to advance your field or expertise or if there is already any interest in what you propose. A national interest waiver example is someone who has a history of success in the endeavor, who has been recognized by peers, or an authority in their field.

In the third prong, the government decides if, on balance, your proposed endeavor is beneficial to the United States. You must convince them that it is impractical to make you go through the Labor Certification process. Your endeavor is simply too important, and you are the ideal person to make it happen. In other words, it is in the national interest of the United States to waive the Labor Certification process.

Employment based 2 | Immigration Lawyer

The EB2 National Interest Waiver Process (EB2 NIW Process)

The EB2 National Interest Waiver process is complex.  A successful petition requires many supporting documents to prove each of the EB2 NIW requirements.  An immigration attorney is in the best position to help you succeed.  If you want to apply for a national interest waiver green card, you need a thorough analysis of your background, abilities, and proposed endeavor by a qualified immigration attorney.   An attorney with experience with EB2 national interest waiver applications is in the best position to create a strategy for your case.

What documents do I need for the National Interest Waiver application?

An EB2 National Interest Waiver application requires lots of documentation and takes time to prepare.  However, it is a great way for qualified candidates to get a green card to live and work in the United States.

After a thorough analysis, you must gather all the evidence that proves you have an advanced degree and exceptional ability.  This usually includes your civil documents, copies of your diplomas/certificates with academic equivalency (if applicable), letters of recommendation, proof of awards/recognition, a business or model plan, etc.  Documents in a foreign language must have a certified English translation.  Your immigration lawyer will present this evidence in a compelling and concise way.  Your NIW lawyer will present this evidence in a compelling way that meets all legal requirements.

How to Prove your Exceptional Ability for an EB2 NIW

Immigration law defines exceptional ability as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”  To show exceptional ability, you must work in the sciences, arts, or business.  You must also meet at least 3 out of the 6 criteria described below:

  1. A degree in your area of exceptional ability
  2. 10 years of work experience
  3. A license or certification to practice your profession
  4. Evidence that you command a high salary for your work
  5. You are a member of a professional association
  6. You received recognition/awards for your achievements or contributions to your industry

However, it is best to meet more than the minimum requirements to increase your possibilities of approval.

Can I petition my Spouse and Children?

Yes.  You can petition yourself for an EB2 national interest waiver green card and include your spouse and your minor children.

How to Apply for a National Interest Waiver Green Card?

You apply for an EB2 National Interest Waiver by submitting to USCIS Form I-140 Petition for Alien Worker and all supporting evidence.  You must also submit all applicable immigration fees.

If you are outside of the United States, you will wait for the decision in your home country.  Once the petition is approved, you will go through Consular Process.  The Consular Process requires you and your dependents to appear at a U.S. Consular Office or Embassy in your home country for an in-person interview.  Once the interview is complete, you and your dependents will get the immigrant visa stamped on your passport.  This visa lets you enter the United States as green card holders.

If you are in the United States with a non-immigrant visa, you can submit Form I-140 and an Application for Adjustment of Status (Form I-485).  This means that you will appear for an interview at your local USCIS office.  You can also receive employment authorization and travel authorization before your case is decided.

How Terra Immigration Help

Our NIW lawyers are skilled in creating strong and convincing EB2 national interest waiver applications.  We work closely with you to ensure that your background and proposed endeavor are presented in the best manner possible.  Our attorneys give your case the attention and care it deserves.

If you have questions about employment-based visas and the green card process, contact our office today. You will speak with an experienced immigration lawyer that can help you. We speak English, Spanish and Portuguese.

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