EB-2

National Interest Waiver

OVERVIEW

The EB-2 National Interest Waiver (NIW) is an employment-based green card category for individuals
with an advanced degree or exceptional ability. Applicants can self-petition or have an employer petition
for them. To qualify, the following three criteria must be met:

Substantial Merit and National Importance

The proposed endeavor must have significant
merit and benefit the U.S. in areas such as business, science, technology, culture, or education,
with a national, not just local, impact.

The applicant must demonstrate that they are well-positioned to advance the proposed endeavor. This includes having relevant skills, education, a record of success, and a plan for achieving the goals of the endeavor.

The applicant must demonstrate that waiving the job
offer and Labor Certification requirements benefits the U.S. by showing the national interest
outweighs the need for these requirements.

Step 1

National Interest Waiver (NIW) Eligibility – Advanced Degree or Exceptional Ability

What is the first step in determining if I qualify for the National Interest Waiver (NIW)?

The first step is to assess whether you meet the criteria under either the Advanced Degree or Exceptional Ability category. This is an “either/or” test, meaning you must qualify under one of these two options.

To qualify under the Advanced Degree category, you must have one of the following:

  • A Master’s Degree (or higher) from the U.S. or a foreign equivalent, OR
  • A Bachelor’s Degree plus at least 5 years of progressive post-baccalaureate work experience in your field of expertise.

The job you are applying for must require an advanced degree, and you must provide proof that you possess the necessary degree or its equivalent.

You must provide:

  • An official academic record showing that you have a U.S. advanced degree or a foreign equivalent.
  • Alternatively, if applying based on a bachelor’s degree with 5 years of experience, provide an official academic record for your bachelor’s degree and letters from former or current employers confirming your post-baccalaureate work experience.

Yes, the job you are applying for must require an advanced degree, and you must have such a degree or equivalent experience. The evaluation will focus on whether the job itself requires this level of qualification.

 

Step 2

National Interest Waiver Assessment

What happens if I meet the criteria for exceptional ability?

If you meet the criteria for exceptional ability or advanced degree (EB-2 classification), the next step is to assess your qualifications under the National Interest Waiver (NIW) requirements. An NIW allows applicants to bypass the Labor Certification process if their work significantly benefits the U.S.

The NIW is a waiver of the Labor Certification requirement for the EB-2 visa. It is granted to individuals whose work is considered in the national interest of the United States. Typically, applicants have exceptional ability, and their employment greatly benefits the nation. Applicants can self-petition, meaning they do not need an employer to sponsor them.

The Dhanasar case sets out three key requirements for obtaining an NIW:

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

To apply, you or your employer must file Form I-140, Petition for Alien Worker. You can file an NIW petition on your own (self-petition) or have an employer sponsor you. If your green card category is current, you may file Form I-485 (Adjustment of Status) along with Form I-140. You can also apply for work authorization and travel documents. Premium processing is available for faster processing of the I-140.

No, you can self-petition for an NIW without employer sponsorship, which allows for greater flexibility in filing your petition.