EB-2 National Interest Waiver

EB-2 National Interest Waiver

Family-Based Immigration

The EB-2 national interest waiver (the “EB-2 NIW”) is a practical option for people with advanced degrees or exceptional ability to secure a green card to the United States without needing a job offer. This article will discuss details around the EB-2 NIW, what it is, who is eligible to receive it, processing times and more. If you have any questions about the EB-2 NIW, please reach out to contact@stenberg.law.

Overview of the EB-2 National Interest Waiver

The EB-2 NIW is a special type of visa where the applicant requests the United States Citizenship and Immigration Services (“USCIS”) to waive the requirement of employer sponsorship (and labor certification) because their work in a particular field is deemed to be in the “national interest” of the United States.

Under the employment-based immigration second preference visa (“EB-2”), individuals with advanced degrees or exceptional ability can apply for a green card in the United States. Typically, EB-2 visa applicants cannot self-petition but must have employer sponsorship (Form I-140 – Immigration Petition for Alien Workers) accompanied by a permanent labor certification (“PERM”) processed by the Department of Labor. The PERM process can be uncertain, expensive and time-consuming.

Thus, as a practical option certain individuals that qualify can bypass the employer sponsorship and PERM process by instead applying for the EB-2 NIW. This provides the applicant with greater flexibility to acquire a green card through self-petitioning and without the need for a sponsoring employer (job offer).

Once approved, the EB-2 NIW visa holder can apply for lawful permanent resident status (green card) in the United States.

Who can apply for the EB-2 National Interest Waiver?

Similar to the EB-2 visa the EB-2 NIW is open to people who meet the criteria of being a member of the professions having an advanced degree or to persons of exceptional ability.

1. Advanced Degree:
An advanced degree for purposes of the EB-2 NIW visa means either a Ph.D., master’s degree, or other post-baccalaureate degree or, in certain circumstances, a bachelor’s degree (plus five years of post-baccalaureate progressive work experience in the relevant field). Please be aware that some jobs that may require an advanced degree in some countries do not require the same in the United States.

2. Exceptional Ability:
According to the USCIS, exceptional ability means “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.” Due to this rather cryptic definition, one of the most critical components of the EB-2 NIW is demonstrating that the applicant can indeed profess an ability that would be considered significantly above that ordinarily encountered in the sciences, arts or business. Working with an attorney familiar with the EB-2 NIW process can be crucial to the application’s success.

The USCIS adopts a two-step approach to determine whether the applicant meets the criteria of “exceptional ability.”

Step 1: Review of Evidence
First, the USCIS will determine whether the evidence submitted meets the criteria listed in the USCIS regulations. The applicant must have submitted three out of the following six types of evidence, including:

• Relevant academic records;
• Letters from current or former employer(s) showing that the beneficiary has at least ten years of experience in the relevant field;
• A license to practice the profession or certification for a particular profession;
• A salary demonstrating exceptional ability (relative to others working in the field);
• Membership in professional associations; and
• Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

Step 2: Final Merits Determination
Please note that the submission of the relevant evidence does not by itself establish that the requirements for exceptional ability have been met. Instead, USCIS will consider the qualityof the evidence submitted and decide whether the applicant has demonstrated a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.

National Interest Waiver Requirements

Once the applicant has demonstrated that they meet the advanced degree or exceptional ability criteria, to determine whether it is in the “national interest” to waive the applicant’s requirement of a job offer, the USCIS will deploy a three-part test:

1. The proposed endeavor has substantial merit and national importance
First, the USCIS will determine whether the evidence submitted regarding the applicant’s proposed endeavor is of substantial merit and of national importance. To quote the USCIS guidelines, the key here is to establish that the applicant’s endeavor will rise to the standard of being able to enhance the “societal welfare or cultural or artistic enrichment or to contribute to the advancement of valuable technology or field of study.”

2. The applicant is well-positioned to advance the proposed endeavor
Secondly, the USCIS will determine whether the applicants themselves are well-positioned to advance the proposed endeavor by evaluating several factors, including (but not limited to) the applicant’s skills, education, knowledge, plans, models, patents, contracts, and current progress toward achieving the proposed endeavor.

3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and labor certification
Lastly, the USCIS will make a holistic determination of the applicant’s application and decide whether the requirement of a job offer and labor certification (a process designed to protect US workers) should be waived because doing so would be in the national interest and thereby outweigh the arguments in favor of employer sponsorship and labor certification.

EB-2 National Interest Waiver for Entrepreneurs and STEM Professionals

The EB-2 NIW can be a pathway for self-employed entrepreneurs and founders to obtain lawful permanent residence status (green card holder) in the United States. To demonstrate eligibility for a proposed endeavor, factors such as intellectual property, company ownership, incubator or accelerator programs (such as Y Combinator or Tech Stars), revenue growth, and investments can all signify that the entrepreneur’s endeavor might be eligible for the EB-2 NIW.

USCIS has recognized the critical role of people in science, technology, engineering and math (“STEM”) for national competitiveness and security. As such, the EB-2 NIW can be a good and flexible option for foreign STEM professionals seeking to immigrate to the United States.

Accompanying Family Members

If the EB-2 NIW is approved, then spouses and unmarried children under 21 may apply to the US in E-21 (spouse) and E-22 (children) immigrant status.

Path to Citizenship

If the EB-2 NIW is approved, then the applicant can apply to become a legal permanent resident (green card holder). After receiving a green card the applicant may apply to become a United States citizen through naturalization after five years.

The rules surrounding citizenship and naturalization law can be complex. It is recommended that the applicant consult with an immigration attorney.

Processing Times

The processing times for the EB-2 NIW visa can vary and can take between six months

Stenberg Law Consultation

Please contact Stenberg Law at contact@stenberg.law for a free initial discussion on the EB-2 NIW visa.