EB 2 NIW: Employment-Based, Second Preference Immigration, National Interest Waiver

Brief Introduction 

NIW (National Interest Waiver) is an employment-based (EB-2) green card petition for an alien who is seeking a waiver of the offer of employment and waiver of labor certification by establishing that his or her admission to permanent residence in the U.S. will be in the national interest. The applicants of NIW category are usually Ph.D. students, researcher, postdocs and other advanced degree professionals.

Advantages

• Applicants do not have to file a labor certification;
• Applicants are not required to have a specific offer of employment;
• Applicants can self-petition;
• Applicants can be F-1 status;
• Faster than regular EB-2 filing process 

Qualifications

NIW petitioner need to be qualified for the following two conditions:

• Before a foreign national considers whether petitioning under NIW is an ideal category, the foreign national first needs to see if he/she qualifies for the EB-2 category.
• Once a foreign national petitioner has established his/her basic eligibility under the EB-2 preference category, he/she must further establish that he/she is qualified for the NIW (thus avoiding the requirement of a job offer, a labor certificate (so that he/she can self-petition for his/her own green card)) by showing that the petitioner’s contributions are of such high value that it would benefit the U.S. to waive labor certification, even if other qualified U.S. workers were available.

Requirements for an Advanced Degree (Either of the following criteria): 

• Petitioner holds an academic or professional degree above the baccalaureate level (from U.S. or foreign countries). 
• Petitioner holds a U.S. Bachelor’s degree or foreign equivalent plus at least five years of progressive post-baccalaureate professional experience. (USCIS considers the combination of the Bachelor’s degree and five years of relevant experience to be the equivalent of a Master’s degree.)

Proof of Exceptional Ability:

If the petitioner doesn't have an advanced degree, he/she should be evaluated and determined that if he/she has such exceptional ability in his/her claimed area of expertise that it is significantly above his/her peer in the area of science, art, or business.  He/she must demonstrate that he/she is qualified for at least three out of the seven criteria below:

• Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
• Letters documenting at least 10 years of full-time experience in your occupation
• A license to practice your profession or certification for your profession or occupation
• Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
• Membership in a professional association(s)
• Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
• Other comparable evidence of eligibility is also acceptable.

Proof for National Interest Waiver (three-prong test):

The following three determinations are the basis for the three-prong test that now governs the NIW process. Like the petitioner had done in Dhanasar, all NIW petitioner must now establish:

1. that the foreign national’s proposed endeavor has both substantial merit and national importance; and
2. that the foreign national is well-positioned to advance the proposed endeavor; and
3. that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Process 

• First step:
  • File Form I-140, Petition for Immigrant Worker;
  • File Form ETA-750B, Application for Alien Employment Certification (Part B);
  • Submit supporting documents which prove that the beneficiary is an “Advanced Degree Professionals” or an “Alien of Exceptional Ability,” such as letters of recommendation, proofs of past achievements, etc.
  • Must wait for priority date (your priority date is the date USCIS receives your petition).
• Second step:
  • If outside the U.S., one-on-one interview with consulate is required;
  • If inside the U.S., using I-485 to file an Adjustment of Status.

Timeline

• Currently overall takes more than 11 months to process
• Once the petition approved, you must wait for your priority date to be current – it will be current in most countries except China and India, as it may be several years before your priority date is current in those two countries
• I-485 will then be submitted which takes around 11 to 35 months to process, depending on which service center the case is submitted to.​​