Welcome to EB2 National Interest Waiver (NIW)!
The EB-2 immigrant visa category for professionals with advanced degrees and individuals with exceptional ability in the sciences, arts, or business generally requires a job offer and a labor certification issued by the Department of Labor (DOL). The labor certification process exists to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing qualified U.S. workers. Please visit the Department of Labor’s website to learn more about the labor certification process.
As DOL regulations prohibit the issuance of labor certifications in self-employment scenarios, an entrepreneur will generally be unable to file an EB-2 visa petition unless he or she qualifies for a National Interest Waiver (NIW) exempting the entrepreneur from the job offer requirement and, thus, the labor certification. Even if you are not self-employed, it may still be challenging for you to obtain a labor certification if you have a significant ownership interest in the company, if there is a familial relationship between you and the stockholders, corporate officers, incorporators, or partners, or if you are one of a small number of employees. If any of these factors apply, your employer must be able to demonstrate that a bona fide job opportunity exists such that the position is open and available to U.S. workers.
An entrepreneur seeking EB-2 classification and exemption from the job offer and labor certification requirements based on the national interest may self-petition. As the majority of entrepreneurs filing under the EB-2 visa category also request a NIW, the following EB-2 visa sections are presented in conjunction with the requirements for a NIW. If you are requesting a NIW, you must first demonstrate that you are either a member of the professions holding an advanced degree or an individual of exceptional ability.
Advantages of National Interest Waiver category
possible without permanent job offer from U.S. employer – self petition
very fast process (usually months, sometimes even weeks) – NIW waives lengthy Labor Certification
EB2 NIW green card is not tied to one employer and change of the job is possible (still need to have a job in the “national interest” area)
EB-2 NIW green card not only for scientists and PhDs
Eligibility for National Interest Waiver (NIW) category is given by satisfying ONE of two statutory requirements:
Advanced Degree Professional (master’s degree or above) – very popular by postdocs, scientists, researchers or even PhD students
Exceptional Ability – thanks to these criteria also non highly educated people such as entrepreneurs, artists etc. can qualify
However, this is only basic minimum requirement and doesn’t guarantee successful approval of EB2 NIW petition. Read posts in eligibility category.
We collected records about successful NIW cases to give an idea about sufficient credentials of applicants. More in credentials and cases.
National Interest Waiver requirements
Except minimum requirements mentioned above, EB2 NIW applicants must provide evidence that it is in national interest to grant them Permanent Residency in USA. According toprecedent NYSDOT case all 3 following criteria must be satisfied:
The beneficiary must seek to work in an area of substantial intrinsic merit.
The beneficiary’s work must have a benefit which will be national in scope.
The beneficiary must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. The national interest would be adversely affected if a labor certification were required for the beneficiary.
Well, this doesn’t say much about how to prove national interest. In NIW requirements posts we describe more in detail each rule and what may be considered as national interest. We learn from previous cases and precedent NYSDOT case. This is most important part of EB2 NIW petition.
Petition for EB2 NIW case
Petition for National Interest Waiver usually consists of:
petition letter (cover letter)
recommendation letters (reference letters)
evidence – publications, list of citations etc.
Green card process
NIW green card application process requires filing forms in two stages:
Form I-140 – Immigrant Petition for Alien Worker
Form I-485 – Adjustment of Status
We have considered to file both steps concurrently and reap the benefits of faster process. This would allow us to apply immediately for work (EAD) and travel authorization (Advance Parole).
Finally we filed both stages separately. In case I-140 is denied we would save thousands of dollars paid for second stage (I-485).
EB2 NIW application procedure is described in green card process category.