National Interest Waiver

To qualify for an EB-2 NIW a potential applicant must first meet the requirements for a standard EB-2 and must also meet additional requirements for the NIW. The petition must first show that the foreign national has the requisite qualifications for the EB-2, which includes evidence of an advanced degree or exceptional ability in the fields of arts, sciences, or business. A qualified EB-2 applicant, who would like to petition with an EB-2 NIW, must also show the following:

1. they plan to work in an area of substantial merit and national importance in the US;
2. their work is national in scope; and 
3. it is in the national interest for the US to waive the labor certification requirement. 

If all of these requirements are met, then the applicant qualifies for self-petitioning with an EB-2 NIW submission.

What is meant by an advanced degree and/or exceptional ability?

Anyone applying for an EB-2 must establish their qualifications by showing an advanced degree or their exceptional ability in a field related to arts, sciences, or business. An advanced degree would be a US, or foreign equivalent, degree beyond a baccalaureate. This could be a Masters degree or Ph.D. degree. An applicant could also show that they have an equivalent to an advanced degree if they can show a baccalaureate and 5+ years of progressive work experience in their field of expertise. 

If an applicant does not have the requisite advanced degree or experience, as stated above, they also have the option to show exceptional ability in their field. While the exact definition for exceptional ability is not strictly defined, the applicant must generally show that their ability is above what is normally encountered among professionals in their field. To establish exceptional ability, an applicant must provide several forms of evidence to show this type of qualification. Evidence can include academic records showing exceptional ability, documentation showing 10+ years of full-time, relevant work experience, appropriate licensing or certifications, proof of salary or income commensurate with exceptional ability, membership in a professional organization, and/or recognition of significant contributions or achievements. This is not an exhaustive list and comparable evidence can also be submitted.

The following documentation and forms will be required for an EB-2 NIW application:

• Form I-140 – Immigration Petition for Alien Worker
• Form ETA-750B – Alien Employment Certification Application
• Petition Letter
• Identity documents
• Evidence/Documentation of Academic & Professional Achievement
  • Official academic transcripts
  • Academic Degrees
  • Current resume/CV
  • Employment and academic awards and certifications
  • Licenses and/or official certifications
  • Professional association memberships
  • Evidence of recognition and achievements
  • Recommendation letters
  • Applicant’s statement
  • Additional relevant evidence or documents

An applicant can file an application for EB-2 NIW from either within the US or their home country. If an applicant is in the US with a valid status, they will need to file for an adjustment of status. If the applicant is outside the US, they will have to go through consular processing. The following steps outline the process for an EB-2 NIW application. 

STEP 1: Preparing the Case 

• During this phase, an attorney will work with applicant to complete the required I-140 petition and ETA-750B, gather require civil documents, draft the petition letter, collect letters of recommendation and all other evidence required for the case. 
• The case will be assembled prepared for submission. 
• The preparation time can vary significantly and is often heavily dependent on an applicant’s ability and time frame in providing all required documentation. 

STEP 2: Submit I-140 Petition for Immigrant Worker & NIW 

• Applicant must pay the I-140 filing fee when the case is mailed. This filing fee should be paid by check or money order, payable to: U.S. Department of Homeland Security (Do not abbreviate), and will be enclosed in the immigrant petition packet. 
• The fully assembled case is then sent to the appropriate USCIS filing location in the continental U.S. 
• Once the case is received by USCIS, the processing time is typically between 6-9 months. Please note that premium processing is not available for NIW cases. 

STEP 3a: Adjustment of Status (within the US) 

• Once the I-140 is approved, form I-485 adjustment of status application must be completed and submitted with all required documentation. 
• Applicable filing fees must be included. 

STEP 3b: National Visa Center (NVC) & Consular Processing (outside the US

• Once the I-140 is approved, the case will be transferred to the National Visa Center (NVC) to begin consular processing, provided the EB-2 is listed as “current” on the visa bulletin. However, if “visa retrogression” occurs as a result of a visa backlog, there may be a wait time of months or even years before an immigrant visa is available for EB-2 applicants. 
• If the EB-2 category stays current, the transfer to NVC should occur within 6-12 weeks of I-140 approval and an official notice confirming NVC receipt of the case will be sent to Attorney and Client. The notice will provide a new case number and processing information for the NVC and the U.S. Embassy where the applicant resides. 
• The DS-260 immigrant visa application must also be completed. Required civil documents and police certificates must be submitted for the primary applicant and dependent family members who will be immigrating to the U.S. 
• U.S. Department of State filing fees must also be submitted at this time including
  • Immigrant visa application fee
  • USDOS Medical Exam
• Once the fees are paid, Client will receive an immigrant visa interview date at the local U.S. Embassy, which is usually available within 3-6 weeks. 
• NVC & consular processing typically takes between 3-6 months 

STEP 4: Immigrant Visa Interview 

• The final step in the EB-2 NIW immigration process is the immigrant visa interview, which must be attended by the primary visa applicant and dependent family members who will be immigrating to the U.S. (Please note that children under the age of 14 are generally not required to attend the immigrant visa interview.) 
• The wait time for immigrant visa interview availability varies depending on the U.S. Embassy where the applicant resides. Wait times may range from 2 weeks to several months. 
• When the appointment has been set, the applicant and family members should complete the required USDOS medical exam per the instructions of the U.S. Embassy. 
• All required documents must be taken to the interview. Please note that U.S. Embassies require original documents AND copies be brought to immigrant visa interviews. 
• At the interview, a consular officer may ask the applicant about his/her application, plans for employment in the U.S., the merits of the case, and how the applicant’s immigration to the U.S. will be in the national interest of the U.S. 
• If the Consular Office is satisfied with the case and the applicant’s answers, the visa will be granted and the applicant will be asked to leave his/her passport and family member’s passports at the Embassy for processing. The passports will be sent to applicant via courier with the U.S. visas inside. The passports are usually delivered within 2-3 weeks from the interview date. 
• Alternatively, the consular officer has the authority to deny the visa or he/she may state that the case must undergo additional administrative processing, which may take weeks or months to complete. 
• If the immigrant visa is granted, the applicant and family members should pay the Immigrant Fee prior to arrival in the U.S. 
• Upon traveling the U.S., the primary applicant and dependent family members will receive their permanent resident cards and social security cards by mail within a few weeks of arrival.

EB-2 NIW applications can be denied for various reasons including application mistakes, incorrect forms, as well as poor case presentation or explanation. How a case is presented or argued is very important. It is not enough to simply list qualifications and fill out the forms, an applicant should make sure that their case is presented and explained in a way that strongly advocates their strengths. A qualified and experienced attorney, familiar with EB-5 NIW cases, will be able to assist in preparing the case and providing the best legal presentation possible. 

Sometimes cases can be denied because there is not enough strong evidence. This is particularly important when showing exceptional ability and how/why the waiver is in the national interest. To best achieve this, evidence should be clear and compelling, and the strongest forms of evidence should be used. It is a good idea to go beyond the bare minimum requirements for evidence, but it is also important not to overwhelm the case with superfluous documents and evidence. It is important to consult an attorney who can do a thorough review of the case and evidence and can determine what should be included and/or if more or less documentation is needed.

If a case is denied, it is possible to make an official request to either reopen the case or to reconsider the case.  These are two separate legal motions. When a request to reopen is made, this essentially asks the USCIS officer to take a second look at the case. A request to reconsider is a petition for someone to review the determination of the officer. It is best to consult an attorney for any such legal motions. In some cases, it may not be prudent or helpful to make a request to reopen/reconsider. An attorney should be consulted on these matters and to determine potential alternate immigration options.