EB-2 National Interest Waiver
For professionals with exceptional abilities or advanced degrees whose work is in the national interest of the United States.
The National Interest Waiver (NIW) is a valuable immigration option for highly skilled individuals whose work is in the national interest of the United States seeking permanent residency. In this guide, we will delve into the intricacies of NIW, including its eligibility criteria, application process, advantages over other immigration petitions, filing fees, and case processing timeline.
What is NIW?
The NIW is available under the employment-based, second preference (EB-2) immigrant visa category. It is a provision within the US immigration law system that allows certain foreign nationals with exceptional abilities or advanced degrees to apply for permanent residency (aka green card) without the need for employer sponsorship or a labor certification. This provision is designed to attract and retain individuals who possess exceptional skills or expertise that are considered vital to the national interest of the United States. NIW is specifically aimed at individuals who demonstrate that their work is of significant benefit to the United States as a whole, rather than solely to a specific employer or industry.
Eligibility Criteria
To qualify for an NIW, applicants must satisfy the following eligibility criteria:
1. Advanced Degree or Exceptional Ability: NIW is a special provision under the EB-2 immigrant visa category. As such, eligibility for the NIW hinges upon first meeting the qualifications for EB2 classification. Within the EB2 category, individuals can qualify in two primary ways: either as an advanced degree professional or as a person of exceptional ability.
To qualify as an advanced degree professional, the applicant must possess an advanced degree degree or its foreign equivalent or a baccalaureate or foreign equivalent degree plus 5 years of post-baccalaureate, progressive work experience in the field.
To qualify as a person of exceptional ability, the applicant must be able to demonstrate a degree of expertise significantly above that ordinarily encountered in their field, and must meet at least three of the following criteria:
A degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability.
At least 10 years of full-time experience in the occupation.
A license to practice the profession.
Have commanded a salary or other remuneration for services that demonstrates the person’s exceptional ability.
Membership in a professional association(s).
Recognition for the applicant’s achievements and significant contributions to their industry or field by their peers, government entities, professional or business organizations.
2. The proposed endeavor has both substantial merit and national importance.
This criterion requires demonstrating that the applicant's proposed endeavor holds significant value and relevance not only within their specific field but also on a national scale. The term "endeavor" refers to specific work the applicant proposes to undertake within their occupation, requiring detailed descriptions of specific projects, goals or specific areas in which the applicant will work within the field.
The merit of the endeavor may be demonstrated in various areas such as business, entrepreneurship, science, technology, culture, health, or education. While potential economic impact is considered, it is essential to note that merit can be established even without immediate economic effects, especially in research or pure science fields.
Furthermore, when determining whether the proposed endeavor has national importance, the focus is on the broader implications of the proposed endeavor on a national scale, emphasizing its potential to contribute to societal welfare, cultural enrichment, or technological advancement beyond local boundaries.
3. Well positioned to advance the proposed endeavor.
This criterion assesses the applicant's qualifications, experience, and resources to effectively carry out and advance the proposed endeavor. In evaluating this criterion, USCIS considers various factors such as the applicant's education, skills, knowledge, and track record of success in related or similar efforts. Additionally, USCIS looks at whether the person has developed a model or plan for future activities related to the proposed endeavor, any progress made towards achieving it, and the interest or support garnered from potential stakeholders.
Evidence to support this criterion may include degrees, certificates, or licenses in the field, patents, trademarks, or copyrights developed by the applicant, letters from experts in the applicant's field, published articles or media reports about the applicant's achievements, and documentation demonstrating a strong citation history of the applicant's work.
Other evidence could include a detailed business plan, correspondence from prospective employers or clients, evidence of financial support or investment from U.S. investors, contracts, agreements, or licenses related to the proposed endeavor, and letters from government agencies or quasi-governmental entities demonstrating the person's ability to advance the endeavor.
4. On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.
This criterion requires a comprehensive assessment of the overall benefit to the United States of waiving the requirement of a job offer and labor certification. Applicants must present a compelling case demonstrating that granting them permanent residency without a job offer would serve the national interest more effectively than requiring them to undergo the labor certification process. This assessment may consider various factors, such as the unique nature of the applicant's work, its potential impact on U.S. competitiveness and innovation, the impracticality of a labor certification application, the urgency of the national interest in the person's contributions and the broader societal or economic benefits of facilitating the applicant's continued contributions to the nation. To support their case, applicants may provide empirical data, expert opinions, market analyses, or testimonials attesting to the significance and value of their work and the benefits of granting them a national interest waiver.
Benefits Compared with Other Employment-Based Immigration Petitions
The EB2 NIW offers distinct advantages over other employment-based immigration categories.
No Employer Sponsorship Required:
One of the key advantages of NIW is that it does not necessitate a job offer or sponsorship from a specific employer. Unlike most other employment-based immigration categories that typically require an employer to sponsor the applicant, NIW allows individuals to pursue permanent residency independently, providing unparalleled flexibility in career choices. This flexibility empowers applicants to explore various employment opportunities, start their own businesses, or engage in research and innovation without being tied to a specific employer. Additionally, the absence of employer sponsorship eliminates the need for labor market testing or demonstrating the unavailability of qualified U.S. workers, streamlining the immigration process and offering greater autonomy to applicants in shaping their professional trajectories.
Expedited Process:
Additionally, NIW applicants from expedited processing compared to other employment-based immigration petitions due to the waiver of the labor certification process. The labor certification process typically involves lengthy and extensive documentation, recruitment efforts, and waiting periods to demonstrate the unavailability of qualified U.S. workers for a specific job position. By waiving this requirement, NIW petitions bypass these procedural hurdles, resulting in a much more streamlined application process and faster processing times, especially with the availability of premium processing. The streamlined processing reduces uncertainty and allows applicants to plan their future in the United States more effectively, making NIW a preferred option for highly skilled individuals seeking expedited permanent residency.
USCIS Filing Fees
As of February 28, 2024, the USCIS filing fees for an NIW petition are as follows:
· Filing Fee for Form I-140: $700
· Premium Processing Fee (optional): $2805
Effective April 1, 2024, the USCIS filing fees for an NIW petition will be as follows:
· Filing Fee for Form I-140: $715
· Premium Processing Fee (optional): $2805
Petitioners are advised to check the USCIS website or consult with an immigration attorney for the most up-to-date fee information.
Case Processing Timeline
The processing time for NIW petitions can vary depending on various factors, including the caseload at the USCIS office handling the application and any requests for additional evidence. On average, the processing time for NIW petitions ranges from 10 - 12 months. Premium processing is available for an additional fee, expediting the review process to 45 business days.
Conclusion
In conclusion, NIW presents a valuable opportunity for highly skilled individuals to obtain permanent residency in the United States based on their significant contributions to their field and the nation as a whole. By bypassing the labor certification process and offering greater flexibility compared to other immigration petitions, NIW serves as an attractive option for those seeking to build their future in the United States. If you believe you qualify for an NIW or require assistance navigating the application process, please feel free to contact us at info@sandplawgroup.com Our experienced immigration attorneys can provide personalized guidance tailored to your specific circumstances.