EB-2 VS EB-2 NIW AND The differences Explained in 2024

Both EB-2 and EB-2 NIW are employment-based visas in the United States. However, the EB-2 is awarded to permanent workers who have already received a job offer in the U.S., whose employers are sponsoring their visa, and whose employer undergoes the Labor Certification process. This is otherwise known as a PERM-based visa. 

So what are some other differences between an Eb-2 vs EB-2 NIW?

Alternatively, the EB-2 NIW visa does not require a job offer, a sponsoring employer, or a labor certification – which is what’s being waived. Applicants must have a profession that is of national interest in the U.S. 

Both employment visas are a pathway to gaining lawful permanent residency in the U.S.

In this article, we navigate through the two second-preference employment-based visas and give an in-depth view of the requirements and eligibility needed for both.

EB-2 PERM-Based 

The second-preference employment-based (EB-2) is a visa subcategory for permanent workers immigrating to the U.S., who have either advanced degrees or exceptional ability in their field of expertise. They must also obtain a Permanent Labor Certification in order to qualify for this visa – discussed in more detail below. 

EB-2 PERM-Based Requirements

In order for applicants to be considered for the job opportunity, U.S. employers must place requirements on the open role in that applicants must meet the following requirements:

• Hold a Master’s degree, or
• Hold a Bachelor’s degree (plus five years of post-Bachelor’s work experience), and the educational degree, work experience, and skills required for the position.

EB-2 PERM-Based Eligibility

By the time applicants apply for an EB-2 visa, they must have the following in order to qualify:

• Have received a confirmed U.S. job offer 
• Hold a Master’s degree, or
• Hold a Bachelor’s degree (plus five years of post-Bachelor’s work experience), and have exceptional abilities in their field – especially in the arts, sciences, culture, welfare, economy, or education – where the line of work is of great benefit to the U.S. as a whole.

EB-2 PERM-Based Sponsorship

Firstly, U.S.-based sponsoring employers are furthermore required to complete the Permanent Labor Certification process through the Program Electronic Review Management (PERM). This process is quite involved and takes nearly two years to complete. Meaning the sponsor must test the labor market for qualified U.S. applicants, and if none are otherwise found, the sponsoring employer must provide such proof. 

Secondly, the U.S. Department of Labor (DOL) must have certified that there was an insufficiency of willing, able, qualified, and available U.S. workers and that employing a foreigner wouldn’t negatively affect the wages and the working conditions of an otherwise employed U.S. worker. 

Note: Sponsoring employers are required to show their ability to pay the EB-2 recipient until he or she obtains lawful permanent residence in the U.S.

Upon receipt of an EB-2 visa, the foreign professional gains a green card and is legally permitted to live and work in the U.S. in their profession.

EB-2 National Interest Waiver

As the name indicates, the EB-2 NIW contains a Labor Certification process waiver. It is an option available only to foreign workers who seek employment in the U.S. whose occupation is beneficial to the United States, that no sponsoring employer would be required for them to continue with their endeavor.

EB-2 National Interest Waiver Requirements

EB-2 NIW petitioners must be foreign natives whose work or research benefits the U.S. economy in the following fields:

• Education
• Healthcare
• Science
• Technology
• Engineering
• Math
• Entrepreneurship
• Or in another vital aspect of society

Such individuals are required to meet the following two initial requirements:

• Qualify for an EB-2 visa
• Meet all three of the Matter of Dhanasar decision test criteria (expanded upon below)

EB-2 National Interest Waiver Eligibility

Foreign petitioners who satisfy the following criteria are generally eligible for an NIW:

• Proof of exceptional ability in their field
• Ability to demonstrate how their employment is of national interest
• Possession of an advanced degree if lacking exceptional ability in his or her field

The qualifying endeavors are ones that pass the three-pronged test, known as the Matter of Dhanasar. The factors the United States Citizenship and Immigration Services (USCIS) considers for National Interest Waivers are as follows:

• The applicant’s proposed endeavor contains substantial merit and is of national importance
• The applicant is well-positioned to advance his or her proposed endeavor
• The applicant and their proposed endeavor are of significant benefit to the national interest of the United States

Upon the receipt of an EB-2 NIW, the petitioner gains a green card and is legally permitted to continue working in their proposed endeavor as a lawful permanent resident.

EB-2 National Interest Waiver Sponsorship

NIW applicants are free to apply for the Eb-2 NIW visa on their own behalf and are not required to seek sponsorship through a U.S. based employer. Nor are they required to present a job offer letter in their NIW petition.

Note: Unlike EB-2 employers, NIW employers are not required to demonstrate their capability to pay their NIW employees.

FAQs About EB-2 vs EB-2 NIW

Conclusion On Comparing The EB-2 vs EB-2 NIW

There are quite a few similarities between the two visa subcategories, such as being second-preference employment-based U.S. visas – where applicants must hold advanced degrees and/or exceptional abilities in their profession. They can be identified as either PERM-based or as a National Interest Waiver (NIW).

Regular EB-2 applicants must prove exceptional ability in their field, especially if they do not hold an advanced degree. When this is the case, they must prove expertise that is significantly higher than others typically found in their profession. 

Such occupations can be in fields such as the arts, sciences, business or technology.

Sponsoring employers of EB-2 workers are required to:

• Require applicants to hold an advanced degree to be eligible
• Test the labor market and show proof if they were unable to find a qualified U.S. worker
• Obtain a Permanent Employment Certification from the DOL
• Hire a foreigner who holds the required degree, or its foreign equivalent
• Petition on their EB-2 employee’s behalf
• Give proof they are capable of paying their employee until they obtain permanent residence

EB-2 NIW foreign nationals seeking the waiver can self-petition, as they do not need a sponsoring employer. 

NIW petitioners must:

• Qualify under the EB-2 visa subcategory
• Hold an advanced degree or foreign equivalent
• Possess exceptional ability in their profession
• Propose an endeavor that is of substantial merit and national importance
• Be well-positioned to execute their proposed endeavor in the U.S.
• Have capabilities that are of national importance, so much so that it benefits the interest of the U.S. to waive the PERM certification requirements

EB-2 NIW recipients gain permanent residence in the U.S. and are permitted to continue with their proposed endeavor.