The EB-2 National Interest Waiver (NIW) is dedicated to foreign nationals who wish to bypass the lengthy labor certification process, expedite the visa process and work in their profession – inside the United States. In this post, we will review how to apply for an EB-2 NIW and discuss why petitioners must develop an NIW petition packet to send to the United States Citizenship and Immigration Services (USCIS) for processing.
In the packet, the applicant must provide evidence that he or she meets the eligibility requirements and write a petition letter that makes a case that they are well-positioned to carry out their plan or endeavor. The applicant must also file the I-140 and I-485 forms and pay the associated fees so that a USCIS officer can determine whether the applicant and their occupation have substantial merit and if their endeavors will benefit the U.S.
Upon approval, the petitioner will receive permanent legal residence, a green card, which will allow them to pursue their proposed endeavors in the U.S.
Preparing the NIW petition packet can take several months, and the entire process generally takes about two years to complete.
What Is an EB-2 NIW Visa?
EB-2 NIW stands for second preference employment-based visa with a National Interest Waiver. Learning exactly what this type of visa is important before you apply for an EB-2 NIW.
This category of employment-based visas is designed for foreign nationals who have either an advanced degree or exceptional ability in their fields of expertise. Individuals, especially so whose work is of national interest to the United States. Petitioners awarded an NIW gain legal permanent residency (a green card) in the U.S. and are free to legally further their endeavors.
Examples of NIW Jobs in the U.S. include, though are not limited to, the following fields:
EB-2 NIW Eligibility Requirements
Before you apply for an EB-2 NIW, petitioners must satisfy two initial requirements:
- Qualify for an EB-2 visa
- Pass the Matter of Dhanasar decision test
Once the above EB-2 NIW eligibility requirements have been accomplished, the petitioner must furthermore demonstrate the following:
- Exceptional ability in their field
- Their employment is of national interest to the U.S.
- Possession of an advanced degree (if he or she does not have previously-established exceptional ability in their field)
As previously mentioned, the Matter of Dhanasar is used by U.S. immigration officers when analyzing and adjudicating NIW petitions. The following components make up the framework of this three-pronged test:
- The petitioner’s proposed endeavor has substantial merit and is of national importance to the U.S.
- The petitioner is well-positioned to advance their proposed endeavor
- On balance, it would benefit the U.S. to waive the petitioner’s job offer and labor certification requirements – meaning the benefits of an NIW outweigh the benefits of the certification
Once the above NIW petition requirements have been met, the USCIS may grant the petitioner a National Interest Waiver.
Note, so as to give a concise overview, the Permanent Labor Certification refers to a requirement for EB-2 visa holders and their sponsoring employers, known as the Program Electronic Review Management (PERM).
The following criteria must be satisfied:
- The foreign national possesses an existing job offer in the U.S.
- Their employer will sponsor their visa
- Their employer must undergo the Labor Certification process
EB-2 NIW Evidence
It is imperative for petitioners to include documentation that demonstrates compelling reasons he or she should be granted an NIW. Applicants need also take into consideration that immigration officers cannot be fully versed in each and every NIW proposed endeavor. Therefore, the petitioner’s evidence must be illustrative and thorough in nature. The key take-home point for this section is gathering evidence is very important before you apply for an EB-2 NIW.
In addition to the aforementioned circumstance, the USCIS does not mandate the particulars regarding requisite NIW supporting documentation. For this reason, immigration officers determine the eligibility of each petitioner according to each individual case. The USCIS does, however, outline the overarching required criteria (discussed later in more detail.)
What generally proves to the USCIS that the petitioner is exemplary and that they are a member of their profession whilst possessing an advanced degree and/or exceptional ability is proof of the NIW evidence requirements below:
- Academic research and awards in the applicant's area of expertise
- Letters of commendation from other experts in the same profession
- Any other forms of official acknowledgment in the applicant’s professional field
- Conference papers in the relevant occupation
- Field-relevant patents
- Proof of contributions to the petitioner’s field or occupation
- Articles from the news (or other applicable media) displaying the national importance of the work of the petitioner and the impact it has in their field
- A detailed plan of the applicant’s proposed endeavor, demonstrating how he or she will advance their predefined goals
- Any other important data as it pertains to the applicant’s profession
Applicants with entrepreneurial proposed endeavors must also provide documentation of the following, when applicable:
- Evidence of start-up capital
- Letter of intent
- Proof of all pre-existing business contracts
- An outline of the path forward
- Records showing any progress made toward accomplishing their predefined goal
- Relevant interest demonstrated by invested shareholders, stakeholders, customers, or external users
According to the USCIS EB-2 criteria website, the following evidence must be provided by the NIW petitioner:
- Official academic records of either a higher education degree, diploma, or otherwise similar certificate in the relevant area of exceptional ability
- Letters from any current or former employers documenting more than 10 years of full-time work experience in their profession
- Any relevant license or certification to practice his or her occupation
- Evidence that he or she has commanded a salary that demonstrates his or her exceptional ability in their occupation
- Documentation of professional association memberships
- Recognition either by the petitioner’s peers, government entities or professional organizations for the petitioner’s achievements and significant contributions to his or her industry
- Evidence of eligibility that is otherwise comparable
Note: All the above requisite evidence will need to be submitted with the Immigrant Petition for Alien Worker (Form I-140). Also, it is equally important for all information provided to be accurate. Failure to do so will result in a Request for Evidence (RFE), causing further process delays or even a case denial.
Guidance for How to Apply For An EB-2 NIW
USCIS officers must first determine whether the PERM process is necessary, taking the following factors into close consideration:
- Whether it would be impractical for the applicant to secure a job offer or labor certification given the nature of their area of expertise
- Whether the U.S. would benefit more from the petitioner’s contribution than from U.S. workers
- Whether the U.S. urgently requires the applicant’s skills and contribution
Once it is decided that the PERM process is unnecessary, USCIS officers will then consider the following factors to determine whether the petitioner is well-positioned to execute their proposed endeavor:
- Level of education
- Official records of success in the petitioner’s occupation
- Applicable knowledge in his or her profession
Further guidance about what evidence USCIS officers examine and how they determine whether petitioners are well-positioned to execute their plan – following the receipt of the NIW – can be found on their NIW Updates Guidance website.
Evidence for Advanced Degree
EB-2 NIW applicants opting for the advanced degree subcategory as a substratum of their petition must provide evidence of either of the following:
- A diploma and official academic records showing that he or she holds a U.S. advanced degree or a foreign equivalent (Master’s degree or higher)
- A diploma and official academic records showing that he or she holds a U.S. baccalaureate degree or a foreign equivalent, accompanied by letters from their current or former employers proving the petitioner has five or more years of progressive post-baccalaureate work experience in the specialty
Note: Letters of commendation must be representative of how the petitioner has improved upon his or her applicable skills during those five or more years. Furthermore, if a doctorate is otherwise customarily required, the NIW petitioner must have a U.S. doctoral degree or its foreign equivalent.
Evidence for Exceptional Ability
Applicants working to apply for an EB-2 NIW and opting for the exceptional ability subcategory must provide evidence of three or more of the following:
- An official academic record showing they have obtained a certificate, diploma, or degree from a university or school related to the exceptional ability
- Proof of payment for services related to the applicant’s ability
- A license (or certification) obtained by the applicant to practice their profession
- A membership in a relevant professional association
- Letters showing 10 years of full-time work experience in their given field
- Official acknowledgment – by peers, government agencies, or related organizations – of the applicant’s contributions to the field
- Other relevant proof of NIW eligibility
Based on the applicant and his or her occupation, their evidence of impact and accomplishments would differ. The evidence provided must showcase how the applicant has had a vital role either in their research or in their field and how their work would benefit the U.S.
Apply For An EB-2 NIW: Cost Breakdown
On average, the cost associated with the EB-2 NIW application process is between $1,530 (when filing from abroad) and $2,325 (when filing from within the U.S.)
The forms and services include the following:
- Form I-140: $700
- Form I-485: $1,140
- Filing from within the U.S.: $1,140
- Filing from outside the U.S.: $345 (Consular Processing)
- Medical examinations: between $200 and $400
- Biometric Services: $85
It is worth mentioning the application to Register Permanent Residence or Adjust Status (Form I-485) is commonly referred to as a green card.
Filing fees submitted to the USCIS must be included as a cashier’s or check money order and must be made payable to the U.S. Department of Homeland Security (spelled in its entirety.) It is important to note when paying more than one fee, each one must have a separate payment. If the fees are combined, this will cause a delay in the EB-2 NIW petition process, as the application will be returned to the applicant.
Petitioners are allowed to file their I-140 and I-485 at the same time (remembering to keep the filing fees separate, and are allowed to file his or her I-485 while their I-140 is pending.
Note: Filing concurrently allows the USCIS to issue an Employment Authorization Document (EAD) while the I-140 is pending.
Here are some other helpful resources as they pertain to employment-based visa applications:
- Fee Calculator
- I-140 document checklist
- Biometric Services
- Consular Processing
- Form I-140
- Form I-485
- Form I-526
- Form I-526E
- Form I-131
- Where to mail all forms
Processing Times when Applying For An EB-2 NIW
In general, the processing timeframes for an EB-2 NIW application is a couple of years.
Depending on where the petitioner files their I-140 application, processing times can be as short as about 11 months and as long as about two years (26.5 months). About two to three weeks later, the petitioner should then receive a Notice of Action (Form I-797) from the USCIS, though it would only be a few days for applicants who have opted for Premium Processing (discussed in more detail later).
When the visa becomes available, the applicant’s I-485 will take between about 6 months to a little more than two years to process – from abroad (Consular Processing) and when filing inside the U.S., respectively. Applicants should consider, however, submitting their I-140 with their I-485 to help reduce processing times.
The most recent processing timeframes can be located on the USCIS processing times estimation website.
Apply For An EB-2 NIW With Premium Processing
The USCIS now offers a premium processing service option for EB-2 NIW applicants. By submitting Form I-907 and paying an additional fee of $2,500, the USCIS will expedite its application process and provide a decision within 45 calendar days.
It is important to add, Form I-907 was updated about a year ago, so petitioners must use the revised form. The fee for Premium Processing must also be paid separately from any other fees. Using form editions prior to 05/31/22 is guaranteed to cause the form to be rejected, hence resulting in a delay of the NIW application process.
How to apply for an EB-2 NIW
When applying for an EB-2 NIW, a specific process needs to be followed, this involves determining eligibility, preparing required documents, gathering appropriate evidence, obtaining official education records, filing the NIW petition with the USCIS, and so on.
The following timeline contains the 10 steps necessary to apply for an NIW and includes what to do after the initial NIW petition packet submission:
- Determine eligibility
- Prepare documentation
- Draft a petition letter
- File Form I-140 and pay the filing fee
- Await for USCIS adjudication and receive Form I-797
- File Form I-485 and pay the filing fee
- Schedule and attend a biometrics appointment
- Attend an interview (when applicable)
- Receive a decision
- Receive permanent residency upon NIW application approval (Petitioners should verify whether his or her green card has been made available by referencing the U.S. Department of State’s (DOS) Visa Bulletin)
Preparing NIW Documents
It is necessary to begin the pre-filing process by first establishing what needs to be included in an EB-2 NIW petition packet. Compiling a document checklist, first and foremost, would be extremely beneficial. Though each petitioner and their case are different, the following is what’s generally needed in order to begin preparing to assemble a proper NIW petition. Additionally, petitioners should be aware that preparing an NIW petition packet can easily take a few months.
Such pages, copies, documents, forms, and evidence include the following:
- Cover page
- Immigration Petition for Alien Worker (Form I-140)
- Petition letter (outline of NIW application)
- Copies of non-immigration and travel documents (passport, visa, I-94, etc.)
- Supporting documentation and applicable evidence
- Resume or a Curriculum Vitae (CV)
- Exceptional ability
- Letters of recommendation
- Write An EB-2 NIW Business plan (when applicable)
- Credential evaluations (when applicable)
- Additional relevant evidence
FAQS For How To Apply For an EB-2 NIW
Can I apply for an EB-2 NIW while in the United States on a different visa status?
Yes, and when the EB-2 NIW petition is approved, petitioners can proceed with adjusting their status to become a permanent resident.
What is the process for applying for an EB-2 NIW
First, the petitioner should gather evidence that supports their case – pertaining to their advanced degree(s) or exceptional ability. Such documents include resumes, official transcripts, awards, recognition, recommendation letters, and evidence that their work is in the interest of the U.S. Secondly, the petitioner would write a petition letter detailing how they and their work meet all of the Waiver requirements. Thirdly, the petitioner needs to file an I-140 and pay the associated fees. If their application is approved, they may file an I-485, to adjust his or her status to permanent resident.
How long does it take to put together an EB-2 NIW application?
It usually takes a few months, especially for petitioners filing under the Exceptional Ability subcategory to gather all the necessary evidence. Applicants filing under the Advanced Degree subcategory don’t need to provide as much evidence, as they may only need to obtain their official educational documents.
Can I file I-140 and I-485 petitions at the same time?
Yes, USCIS allows EB-2 petitioners to file Forms I-140 and I-485 concurrently, which includes their dependents as well.
Do I need to submit evidence of an advanced degree and exceptional ability for an NIW, when completing Form I-140?
No, applicants need to provide evidence which supports their petition of the National Interest Waiver via an advanced degree or their exceptional ability – not both
When applying for an EB-2 NIW, what should the expert letters contain?
Letters should be written by other experts in the same field of the applicant and should first articulate their relationship to the NIW petitioner. The author of the letter must also state how the applicant’s work is of national importance, highlighting their successful track record. Additionally, they should write about the petitioner’s ability to execute their project, referencing their published works. Lastly, the writer should express their support for the applicant’s proposal, affirming the urgency of the proposal – that waiving the labor certification requirement would benefit the U.S.
Can I use recommendation letters from other visa applications for my EB-2 NIW?
Reusing previous letters is strongly advised against, as the professionals who wrote the other visa letters could simply be colleagues or employers, therefore they are generally not the same as experts writing letters for an NIW. EB-2 NIW applicants should gather newly-written letters from experts who are able to write for National Interest Waivers petitions. Only if it can be ascertained that another letter of recommendation has all the evidence necessary for an EB-2 NIW petition can the letter be reused.
What is a PERM certification?
PERM stands for Program Electronic Review Management. It is a labor certification process that U.S.-based sponsoring employers must go through before hiring an employment-based visa applicant. The process is complex and takes about two years to complete whereas the employer must test the labor market for qualified U.S. applicants. When none are found, the sponsoring employer must provide proof. If the U.S. Department of Labor (DOL) can certify that there weren’t any qualified, willing, able, and available U.S. workers, and that employing the applicant would not negatively affect the wages (and working conditions) of other currently employed U.S. workers, the applicant may be granted their employment-based visa.
Where do I send my EB-2 NIW petition?
There are several different locations, depending on where the petitioner is at the time of their application. Specific mailing addresses can be found on the USCIS Direct Filing Addresses website.
Conclusion of How to Apply for an EB-2 NIW
The EB-2 NIW is a waiver for foreign nationals seeking employment-based lawful permanent residency in the U.S. the NIW is for individuals holding an advanced degree or exceptional ability in the sciences, arts, technology, or business and whose current work or proposed endeavor would substantially benefit the U.S. educational system, economy or culture.
Their petition is to forgo the lengthy labor certification process and expedite the visa process so they can continue the work in their profession – in the United States.
EB-2 NIW petitioners must demonstrate how they and their contributions are well-positioned to positively impact the U.S. by submitting an NIW petition packet that often takes months to prepare.
First, applicants must meet the eligibility requirements. They must subsequently gather and prepare all requisite documentation (dependent on the subcategory of either an advanced degree or exceptional ability) and write their petition letter.
Then, they must file the I-140 and I-485 forms, pay the associated filing fees, and retain copies of the payment confirmations to include in their NIW petition packet.
Once the packet is submitted, a USCIS officer will review it and make their determination on whether the foreign national and their profession has substantial merit, and whether their endeavor will benefit the U.S.
Upon completion of this process, and the application is approved, the petitioner will be granted permanent legal residence (a green card) and will then be permitted to carry out their proposed endeavors in the United States.