National Interest Waivers (NIW): Eligibility, Requirements, Process, EB-2 Green Card FAQs
The National Interest Waiver (NIW) is a unique pathway to becoming a U.S. lawful permanent resident (LPR) through an Employment-Based Second Preference (EB-2) green card. This waiver allows you to contribute your work to the United States, benefiting U.S. society. The EB-2 NIW requirements set it apart from other categories because it does not require employer sponsorship or labor certification, simplifying the process for you.
Two Routes to EB-2
An EB-2 visa is an employment-based visa for second-preference workers—professionals who hold advanced degrees or have exceptional ability. There are two routes to the EB-2 I-140:
- PERM Labor Certification
- National Interest Waiver
What Is an EB-2 PERM?
An employer can sponsor an employee for a PERM labor certification in the EB-2 category. PERM stands for “Permanent Employment Certification,” which is issued by the Department of Labor (DOL) through ETA Form 9089. A PERM lets a U.S. employer hire a foreign national to be a permanent employee. The DOL’s certification, or approval,shows that, for the sponsored position, there are no qualified, willing U.S. workers able to do the job.
The process of obtaining a PERM is a lengthy one, requiring multiple steps, forms, costs, and governmental departments to go through. PERM has the potential to be denied at any step, which impacts your ability to begin your application process for your employment-based green card.
What Is an EB-2 NIW?
EB-2 NIW is an I-140 category on the path to obtaining lawful permanent residency in the United States by proving that your work can benefit the United States. That being said, you will need to make a strong case that your work is deserving of a waiver.
NIW is a national interest exemption for the need for labor certification (the PERM mentioned above). Since a PERM is not required, an NIW green card does not necessitate an official job or employer sponsor. The option is still available if you do have an employer, but they do not need to petition for you nor do they need to apply for a PERM.
Because there is no labor certification requirement, you are allowed to self-petition for your EB-2 NIW without the worry of the risk of losing your green card if a change of employment occurs.
EB-1A vs. EB-2 NIW
NIW does not require a labor certificate, and neither does the first preference employment-based green card—also known as EB-1. EB-1A visas are for individuals who can demonstrate extraordinary ability. To prove extraordinary ability, you must meet a certain set of criteria such as recognized prizes, published material in major publications, or proof of original contributions in your field. Because these outstanding achievements in your field demonstrate your expertise, you do not need to apply for a labor certificate.
The EB-2 NIW does not require you to show your extraordinary ability. This means you do not need to meet the extremely high standard of the EB-1 criteria. Yes, you do need to show that you are well-positioned to benefit the U.S., but with evidence that differs from the first preference visa.
NIW vs. PERM
Although PERM takes quite a while and is an extensive process, it does not require you to show that your work is in the national interest. A PERM is for a specific position with the sponsoring employer. EB-2 NIW considers your work to be of national importance and substantial merit.
But in addition to extra time and costs, you must have an employee sponsor you in order to get a PERM.
EB-2 NIW Benefits
Because of EB-2 NIW benefits, choosing the NIW employment-based route may be advantageous over an EB-1 or labor certification. However, each case is individualized, and there are also benefits to choosing to apply for PERM or EB-1 instead of an NIW green card. Because each situation is unique when applying for an employment-based green card, it is best to discuss options with your NIW lawyer. An immigration attorney can offer insight into the process and help you make the best decision for your position, especially as it regards the historical trends of EB-2 NIW approval and denial rates.
NIW Legal Requirements: Qualifying for National Interest Waiver
To obtain a National Interest Waiver, you must show that you qualify for the EB-2 category through either an advanced degree or exceptional ability. For an advanced degree, you must have a U.S. advanced degree or the equivalent. A bachelor’s degree plus five years of progressive post-baccalaureate work experience is deemed the equivalent of a master’s degree.
For exceptional ability, you must have a significant level of expertise in your field of work and meet EB-2 criteria. You need to meet at least three of the criteria to show exceptional ability:
- Recognition for your significant contributions to your field
- Membership in a professional association
- A professional license to practice your occupation
- Evidence you commanded a salary
- An official academic record that presents your expertise and ability from your academic institution such as a:
- Degree
- Diploma
- Certificate
- College/university/institutions of learning award
- Letters that show 10 years of full-time experience in your field
There is not a set number of letters of recommendation required for EB-2 NIW eligibility. However, the more proof of evidence you can present to solidify your expertise, the stronger your case will be.
In addition to the foundational EB-2 criteria, the requirements specifically for the NIW category include:
- Your proposed work in the U.S. is of national importance and substantial merit
- You are well-positioned to carry out your proposed work
- The United States should waive the requirement for a job offer
You will need to present evidence of how and why the U.S. should waive a labor certificate.
How Can I Apply for an EB-2 NIW?
For an EB-2 NIW, you need to file Form I-140 with USCIS. Form I-140 is a petition for a foreign worker to become a permanent resident. In fact, all three employment-based categories (EB-1, EB-2, and EB-3) require a Form I-140.
NIW Approved, What Next?
When your Form I-140 is approved, you can track your priority date to see when you are eligible to apply for a green card using the Department of State’s Visa Bulletin. Your priority date is the date that your NIW I-140 is submitted and will be noted on your I-140 approval. Once this priority date is current, you can apply for an adjustment of status or consular processing for your immigrant visa.
Does My Work Qualify for an NIW?
Your expertise alone may not be enough to qualify for an NIW. Your work must include contributions to your field that focus on developing specific advances for the broader society.
Advances to the greater society of the United States can be in any societal sector, including the economy, education, public health, government, environment, art, or other systems of society. If your work improves the lives of the people of the United States, you may qualify.
For example, if your scientific contribution to medicine can save lives across the nation, your work can be furthered and be considered worthy of an NIW. You do not necessarily need to be in the field of saving lives, though. You can also have an idea that can be put into action to make housing more affordable. This could be a structural engineering position or a job that creates an economically savvy plan for affordable housing.
Or maybe you are in the field of environmental study as another example. Even if your contributions to your field are significant, they may not be enough to merit an NIW just because of the general field of your work. You need to show that your work will have broad implications.
EB-2 NIW Processing Time
Processing time for the NIW green card through USCIS can take years. However, this process may take longer if USCIS issues a Request For Evidence (RFE). You can opt to pay a government premium processing fee of $2,805 if you wish to receive a response from USCIS (approval or RFE) within 15 calendar days.
National Interest Waiver Document Checklist
Applying for an EB-2 NIW status can be complicated because of the number of forms and documents required. The NIW process can be broken down by the necessary documents needed for your application.
You will need to provide the following for the whole NIW application:
- Form I-140
- Evidence of an advanced degree—a bachelor’s with 5+ years of experience, a master’s, a Ph.D., or a foreign equivalent—or evidence of exceptional ability
- Letters of Recommendation
- Evidence of recognition, achievements, and/or awards
- Proof of expertise and experience in your field of work
- Affidavits from experts in your field
- Other supporting evidence that meets EB-2 legal requirements
What if My NIW Is Denied?
If your NIW application is denied, speak with your NIW lawyer about the next steps to take. You may be able to make a motion for your case to be reopened. You may also be allowed to make a case to the Administrative Appeals Office. Upon an EB-2 NIW denial, you are allowed to ask the USCIS officer to look at your case a second time with new evidence.
Your NIW attorney may also be able to provide you with insight on potential other green cards that may be best for you. With your qualifications, you could be eligible for other visas.
Contact an Experienced NIW Lawyer
If you are wondering about the National Interest Waiver, the attorneys at Scott D. Pollock & Associates P.C. are here to answer your questions. With over 70 years of combined experience, an NIW attorney at our law firm will be able to help you navigate the process of applying for your EB-2 NIW.
Applying for a National Interest Waiver can be a confusing process requiring a strong presentation of your skills. An NIW attorney will be able to help construct your case and fill out an NIW self-petition if need be. Contact us at 312.444.1940 to set up a consultation today.
