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Introduction to the EB-2 NIW Visa

The EB-2 NIW (National Interest Waiver) Visa is an immigration option that allows individuals with advanced degrees or exceptional abilities to apply for permanent residency in the United States without needing a job offer from a U.S. employer or a labor certification. This visa not only benefits the applicant but can also include their family members in the process of obtaining a Green Card.

If you are considering moving to the U.S. permanently, you might have looked into the EB-2 visa. However, the traditional EB-2 visa has a requirement that can be challenging to meet: reliance on an employer. This is where the EB-2 NIW visa becomes an attractive alternative. This waiver allows applicants to self-petition, saving time and speeding up the process. Below, we provide a detailed overview of the requirements, eligibility, and application process for the EB-2 NIW visa, along with what to expect after obtaining it.

What is the EB-2 NIW Visa?​

The EB-2 NIW visa provides a pathway to permanent residency in the U.S. for individuals with an advanced degree or exceptional abilities who can demonstrate that their work is in the national interest of the country. Unlike the traditional EB-2 visa, which requires a U.S. employer to sponsor the applicant and file a labor certification, the EB-2 NIW allows individuals to self-petition. Under the National Interest Waiver, applicants must prove that their work will substantially benefit the United States, justifying the waiver of the usual job offer and labor certification requirements.

Differences Between the EB-2 NIW Visa and the Regular EB-2 Visa​

The standard EB-2 visa requires the applicant to have a permanent job offer from a U.S. employer and to obtain a labor certification, which proves that no qualified U.S. workers are available for the job. In this case, the employer sponsors the petition, and the applicant is the beneficiary. The applicant must also demonstrate that they meet the qualifications required for the position.

In contrast, the EB-2 NIW allows applicants to self-petition without needing a job offer. To qualify for the national interest waiver, the applicant must demonstrate that their work will substantially benefit the U.S., making it in the country’s interest to waive the traditional labor certification and job offer requirements.

EB-2 National Interest Waiver Eligibility Explained​

To be eligible for an EB-2 National Interest Waiver (NIW), applicants must meet the requirements for an EB-2 visa, which includes having an advanced degree or exceptional ability in their field. The specific requirements depend on whether you are applying based on an advanced degree or exceptional ability.

Advanced Degree​

To qualify under this category, you must possess one of the following:

  • A U.S. master's degree or its foreign equivalent.
  • A bachelor's degree plus five years of progressive work experience in the field.
  • A Ph.D. (or its equivalent).

You must provide official academic documentation and, if applicable, letters of recommendation from employers confirming your work experience.

Exceptional Ability​

If you are applying based on exceptional ability, you must demonstrate expertise significantly above that ordinarily encountered in your field. You must provide at least three of the following types of evidence:

  1. Official academic records related to your field.
  2. Professional licenses relevant to your field.
  3. Evidence of membership in professional associations.
  4. Documentation of significant remuneration or salary that demonstrates your exceptional ability.
  5. Letters from employers attesting to at least ten years of experience in your field.
  6. Recognition in your field, such as awards or scholarships.

Eligibility Wizard​

For those unsure about their eligibility, our site offers a free eligibility wizard to help determine if you meet the criteria for the EB-2 NIW. This tool provides a quick and easy way to assess whether you qualify.

The three criterias to qualify for the EB2 NIW Visa​

Additionally to eligibility, applicants must meet the three criteria established in the landmark case Matter of Dhanasar. These criteria are:

  1. The proposed endeavor must have substantial merit and national importance.
  2. The applicant must be well-positioned to advance the proposed endeavor.
  3. It must be beneficial to the U.S. to waive the job offer and labor certification requirements.

You can review the full decision in Matter of Dhanasar here.

More information here

EB-2 NIW Application Process​

The application process begins by filing Form I-140 (Immigrant Petition for Alien Worker) with USCIS. As of April 2024, the filing fee for this form is $715. You must include all relevant supporting documentation, which should be clearly labeled and organized. The petition must be submitted to the appropriate USCIS office based on where you plan to work or reside.

More infomation here

Processing Time for the EB-2 NIW Visa​

Processing times vary depending on several factors, such as where the petition is filed and whether premium processing is requested. In general, processing for Form I-140 can take between 10 months and 2 years. However, premium processing is available for an additional fee of $2,500, which can reduce the wait time to 45 days.

Costs Associated with the EB-2 NIW Visa​

The costs for the EB-2 NIW application can vary depending on factors such as your location, the need for document translation, or whether you hire an immigration attorney. Below are some common costs:

  • Form I-140: $715
  • Form I-485 (if applying from within the U.S.): $1,140
  • Form DS-260 (if applying from outside the U.S.): $325
  • Medical exam: $200-$500
  • Biometrics fee: $85
  • Document translation: $50-$500
  • Credential evaluation: $200-$500
  • Premium processing (optional): $2,500

Attorney Costs for EB-2 NIW Visa​

While it is possible to file the EB-2 NIW petition on your own, many applicants choose to hire an immigration attorney to guide them through the complex process. The cost of an attorney can vary based on the attorney’s experience and the complexity of the case. Typically, attorney fees for an EB-2 NIW range from $5,000 to $15,000. These fees usually cover assistance with preparing the Form I-140 petition, gathering supporting documentation, and responding to any requests for evidence (RFEs) that may arise during the process.

Hiring an attorney can be beneficial, especially if you are unsure about how to present your qualifications or if your case has any complexities. However, this cost is in addition to the government filing fees and other associated costs.

Filing the EB-2 NIW Petition Without an Attorney​

Filing the EB-2 NIW petition without an attorney is a completely viable option, especially for those who are comfortable handling paperwork, have a solid understanding of their qualifications, and are familiar with the U.S. immigration process. Many applicants successfully prepare and file their petitions independently, and this approach can save a significant amount of money on attorney fees.

Here are some of the benefits of filing on your own:

  1. Cost Savings: By avoiding attorney fees, you can reduce your overall costs and focus solely on the required government fees and any other associated costs like translations or evaluations.

  2. Control Over Your Petition: Self-filing gives you complete control over your application. You’ll be able to carefully review your supporting documents and present your qualifications in the best possible light.

  3. Abundant Resources: There are plenty of resources available, including official guidelines from USCIS, case studies, and tutorials, that can help you understand the process and requirements.

  4. Clear Documentation Requirements: USCIS provides clear instructions on what documents to include in your EB-2 NIW petition. Following these instructions carefully will help you ensure that your petition meets all necessary requirements.

Tips for Filing on Your Own​

To successfully file on your own, make sure to:

  • Thoroughly understand the three key criteria set out in the Matter of Dhanasar decision.
  • Gather and organize your supporting documents clearly and effectively.
  • Pay attention to detail when preparing your Form I-140 and ensure all required evidence is included.
  • Be prepared to respond to any requests for evidence (RFEs) if USCIS requires additional information.

If you have a strong case with well-documented qualifications and contributions, filing without an attorney can be a cost-effective and straightforward process. Thousands of applicants have successfully navigated the EB-2 NIW process independently.

What Happens After Approval?​

Once the EB-2 NIW petition is approved, you will need to monitor the U.S. Department of State’s Visa Bulletin to check for the availability of visa numbers. Once a visa number becomes available, you can proceed with the application for permanent residency (Green Card), which can take up to two years.

  • If the applicant is inside the U.S., they should file Form I-485 to adjust their status.
  • If the applicant is outside the U.S., they should follow the Consular Processing to obtain an immigrant visa and subsequently permanent residency.

Both processes lead to the issuance of a Green Card, granting the applicant and their dependents permanent residence in the United States.

Is it Difficult to Obtain the EB-2 NIW Visa?​

The difficulty of obtaining an EB-2 NIW visa depends on the individual’s circumstances. Although the process can be complex, recent statistics indicate a high approval rate, with over 90% of EB-2 NIW petitions approved in the last five years.

Frequently Asked Questions​

  • What does NIW stand for?
    NIW stands for National Interest Waiver, which allows applicants to bypass the job offer and labor certification requirements.

  • Do you need a job offer for the EB-2 NIW?
    No, the EB-2 NIW does not require a job offer or labor certification.

  • How long does the EB-2 NIW process take?
    The process can take between 45 days (with premium processing) and up to two years, depending on several factors.

  • Where is the official information about EB-2 NIW Visa?
    The official information about EB-2 NIW Visa is available through USCIS. There is a USCIS policy manual related to the EB-2 NIW visa, which you can find here: Chapter 5 - Advanced Degree or Exceptional Ability.

  • Can I apply for the EB-2 NIW without a degree?
    Yes, but only if you can demonstrate exceptional ability in your field of expertise. The EB-2 NIW visa allows individuals without a formal advanced degree to apply if they can prove they possess exceptional ability, as shown through various types of evidence like extensive experience, awards, or recognition in their field.

  • Can I bring my family on an EB-2 NIW visa?
    Yes, your spouse and unmarried children under the age of 21 can apply for permanent residency along with you. Your spouse may also apply for work authorization once they are in the U.S.

  • What kind of evidence do I need to prove national interest?
    To prove national interest, applicants generally provide evidence showing how their work benefits the United States in areas like economy, healthcare, environment, education, or technological innovation. Letters of recommendation from industry experts, publications, and documentation of the broader impact of your work are commonly submitted.

  • How many letters of recommendation do I need for an EB-2 NIW application?
    While there is no official requirement for the number of recommendation letters, applicants typically submit 3-5 letters from experts or professionals in their field. These letters should highlight the significance of your work and its impact on the national interest of the U.S.

  • Is premium processing available for the EB-2 NIW?
    Yes, premium processing is available for EB-2 NIW applications. This service expedites the processing of the I-140 petition, reducing the processing time to approximately 45 days. However, it does not expedite the entire Green Card process, only the I-140 petition.

  • Can I change jobs while my EB-2 NIW application is pending?
    Yes, since the EB-2 NIW visa does not require a specific job offer, you have more flexibility in changing jobs compared to other employment-based visas. However, the new job should still align with the field of work or expertise presented in your EB-2 NIW petition.

  • What happens if my EB-2 NIW petition is denied?
    If your petition is denied, you can appeal the decision or file a motion to reopen or reconsider with USCIS. In some cases, applicants choose to submit a new petition with additional evidence to strengthen their case.

  • Can I apply for a second EB-2 NIW if my first is denied?
    Yes, if your initial EB-2 NIW application is denied, you can reapply with a new petition. In this case, it's essential to provide additional evidence or address any issues that may have caused the initial denial.

  • Can I apply for an EB-2 NIW if I am already in the U.S.?
    Yes, you can apply for an EB-2 NIW from within the U.S. through an "Adjustment of Status" if you are already in lawful status. If you are outside the U.S., you would apply through consular processing.

  • Do I need to show extraordinary ability for an EB-2 NIW, similar to the EB-1?
    No, extraordinary ability is not a requirement for the EB-2 NIW. However, if you are applying without an advanced degree, you will need to demonstrate "exceptional ability" in your field, which is a lower standard than "extraordinary ability" required for an EB-1 visa.

  • Is the EB-2 NIW visa capped annually?
    Yes, the EB-2 NIW visa is subject to annual numerical caps. This can sometimes result in waiting periods, particularly for applicants from countries with high demand for U.S. visas, such as India and China.

  • How does the visa bulletin affect EB-2 NIW processing?
    The U.S. Department of State releases a visa bulletin each month, which shows visa availability by priority date and country of origin. If your priority date is current based on your country of origin, you can proceed with applying for a Green Card. Applicants from countries with backlogs, like India and China, may face longer wait times for a visa number.

  • Can I apply for a Green Card through another category while my EB-2 NIW is pending?
    Yes, you can apply for a Green Card through another category while your EB-2 NIW is pending. This is known as "dual intent," and it's possible to have multiple petitions submitted concurrently, such as an EB-1 or an H-1B visa.