Procuring a National Interest Waiver, also known as the NIW, allows you to become a U.S. lawful permanent resident (LPR) through an EB-2 green card. The NIW allows you to contribute your work to the United States to benefit U.S. society without requiring employer sponsorship or a labor certification.
What Is an EB-2 Green Card?
An EB-2 green card is an employment-based green card for second-preference workers—professionals who hold advanced degrees or have exceptional ability.
Certain employment-based visa requires a labor certification, which we will discuss later on. However, the National Interest Waiver (NIW), is for those who qualify to work under the EB-2 visa without a labor certification. An NIW only requires a cause or position that greatly benefits the United States.
What Is the Labor Certification Process?
For certain categories within the green card, applicants must hold an approved PERM Labor Certificate. The PERM is issued by the Department of Labor (DOL) through ETA Form 9089. The PERM lets a U.S. employer hire a foreign worker as a permanent employee. The DOL’s approval shows that no qualified, willing U.S. workers can do the job for the applicant’s particular position in the area of intended employment.
The process of obtaining a PERM is lengthy, requiring multiple steps, forms, advertisements, costs, and governmental departments to go through. The 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 National Interest Waiver?
The National Interest Waiver is a subcategory of the second preference employment-based green card. Put more basically, it allows you to obtain a green card so long as you prove that your skills and professional work can and will benefit the U.S. That being said, you must make a strong case that your work deserves a waiver.
The waiver is a national interest exemption for the need for labor certification (the PERM mentioned previously). Since a PERM is not required, an NIW green card does not necessitate an official job or employer. The option is still available if you have an employer, but they do not need to petition for you or apply for a PERM.
Because there is no labor certification requirement, you are allowed to self-petition for your EB-2 NIW without worrying about losing your green card if a change of employment occurs.
EB-1 Green Card vs. EB-2 NIW Green Card
The EB-1 first preference employment-based green card is for individuals who can demonstrate extraordinary ability. To prove extraordinary ability, you must meet certain criteria such as hold recognized prizes, have 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. So in this aspect, the EB-1 is similar to the EB-2 NIW in that it does not require labor certification.
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, it would help if you showed that you are a vital employee and crucial to your field of work, but it is not required. Here, we need to show that your work is within the national interest, and you are well positioned to move your endeavor forward.
PERM vs. NIW
The PERM process is in place due to the national interest of protecting U.S. worker’s jobs. As aforementioned, the PERM process is used to determine whether there are any U.S. workers that are willing and able to work in the position that is being sought for. A U.S. worker is either a U.S. citizen or a Lawful Permanent Resident. Although the PERM process takes quite a while and is an extensive process, it does not require you to show that your work is in the national interest. However, the PERM process does require employer sponsorship, as it is specific to your position at the worksite location. In contrast, the EB-2 NIW is on a broader scale and tests whether your endeavor is a national interest within the U.S. Here, the NIW does not require employer-sponsorship.
EB-2 NIW Benefits
One great and obvious benefit is that if your work is within the national interest of the United States, you can bypass the extensive PERM process. Additionally, you do not need to be at the top percentage of your field in order to obtain this type of green card. Because of certain EB-2 NIW benefits and requirements, choosing the NIW route may be advantageous over an EB-1 or other green card routes that require labor certification. However, each case is individualized, and there are definite benefits to applying for a PERM-based or EB-1-based green card instead of an NIW green card. Because each situation is unique when applying for an employment-based green card, discussing options with your lawyer is best. An immigration attorney can offer insight into the process and help you make the best decision for your position, especially regarding the historical trends of EB-2 NIW approval and denial rates.
Requirements for the National Interest Waiver
The endeavor that the prospective worker will undertake must have substantial merit, and the individual must be well positioned to undertake the endeavor. Well positioned can be shown a number of ways, through letters of recommendation, membership in groups, publications in the field, and more. Further, the individual is required to hold either an advanced degree or have exceptional ability in the field.
USCIS determines an advanced degree to either be, at minimum, a bachelor’s degree plus five years of experience in the field, or a master’s degree. If the individual does not satisfy the educational requirement, then the individual must have at least 10 years of full-time experience in the field.
Stay tuned because I have an extraordinary story about a prior client that on face value, did not seem like he qualified for the national interest waiver.
How Can I Apply for an EB-2 NIW?
Form I-140 is required to be filed with USCIS. Because you are applying for a National Interest Waiver, you can either self-petition or have your employer file on your behalf.
You can track your priority date to apply for a green card in the Department of State’s Visa Bulletin. Your priority date is the date that your I-140 is submitted. Once this date is reached, you can apply for an adjustment of status.
Depending on your country of nationality, you may be able to file the I-140 and green card application at the same time.
EB-2 NIW Processing Time
As of November 2023, processing the NIW petition through USCIS can take 10 to 14 months. However, this process may be extended if you need to present further documentation. If you receive a Request For Evidence (RFE), you must present additional evidence that USCIS requests. If USCIS finds your presentation of evidence insufficient, they may deny you a waiver.
If you wish to upgrade your case, USCIS is currently allowing cases to be premium processed with an adjudication in 45 days by filing Form I-907 with an additional $2,500 fee.
After the NIW is approved, USCIS will review the green card application. Processing times vary but generally take over a year to process.
National Interest Waiver Document Checklist
Applying for an EB-2 NIW status can be complicated because of the forms and evidence required. Depending on the case, as each case is unique, you should generally provide the following:
• Form I-140 and its filing fee
• Evidence of an advanced degree—a bachelor’s with 5+ years of experience, a master’s, a Ph.D., or a foreign equivalent—or proof 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
• Résumé
• Any other supporting evidence that meets EB-2 legal requirements
Form I-485, Application to Register for Permanent Resident or Adjust Status, at minimum. Though we also file Form I-765 and Form I-131 for additional work and travel authorization.
What if My NIW Is Denied?
If your NIW application is denied, speak with your NIW attorney about the next steps. Depending on the circumstances, you may be able to motion for your case to be reopened or reconsidered if you have new evidence that was not available at the time the case was filed or if the officer erred in adjudicating the case. You may also be allowed to make a case to the Administrative Appeals Office.
Your NIW attorney can also provide insight on other green cards that may be best for you. With your qualifications, you could be eligible for other visas.
Client Experience
I specifically have an interesting story in this visa category. I had the opportunity to work with a client from Brazil who initially appeared to be an unlikely candidate for a national interest waiver green card. However, as I delved deeper into his background and aspirations, it became evident that we had a potentially approvable case.
On the surface, my client was a middle school P.E. teacher, which may not immediately align with traditional fields associated with national interests like medicine, security, or technology. However, upon closer examination of his background, I discovered a compelling argument related to healthcare. Given the significant concern surrounding obesity in the United States, I emphasized how his educational background, work experience, and vision for his endeavors could contribute to tackling this national health issue from a young age to teach healthy habits.
During our discussions, I made it clear to my client that his case was not among the strongest, but I believed it was worth pursuing if he was willing to take the risk. He agreed, and thus began an uphill battle. As expected, we received a Request for Evidence (RFE), which is a common occurrence in these types of cases. However, we overcame the challenges and successfully obtained approval for his national interest waiver, ultimately leading to the acquisition of his green card.
This case serves as a testament to the importance of digging deeper and identifying unique angles that align with broader national interests, even when they may not be immediately apparent.
Bonus
As promised, here’s some bonus information that you may not know about:
Required Medical Examinations and Vaccinations
To be approved for a U.S. green card, all applicants must complete a medical evaluation proving that they are healthy enough to enter and live in the United States without posing a risk to the general public. In addition to this medical examination, the applicant must also receive the required vaccinations.
Instructions for what specific vaccinations are needed, along with the required medical examination form, are necessary for the green card to be approved. A licensed doctor, also referred to as a panel physician, must sign all medical forms. These will be included in the portfolio of evidence that are to be submitted.
Thanks for joining me today, be sure to check the caption below this video. We’ve got questionnaires for different types of visas so that we can help you determine which visa is most appropriate for you. And if you’re traveling soon, we also have a list of some of my travel favorites.