EB2-NIW THE BASICS: determine your eligibility
To file an EB2-NIW petition, the applicant must meet specific eligibility criteria. These criteria include possessing either an "advanced degree" OR "exceptional ability" in the fields of sciences, arts, or business. The petitioner or beneficiary must demonstrate their intention to work in a field that holds substantial intrinsic value to the United States. Additionally, they need to prove that their proposed activities will have a national impact and that the requirement of a Labor Certification would harm the national interest. As the petitioner or beneficiary seeks a waiver of the labor certification requirement through the discretionary power of the USCIS Director, the responsibility falls on them to provide compelling evidence that such an exemption serves the national interest of the United States.
Sub-Categories | Description | Evidence | |
Advanced Degree
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The job you apply for must require an advanced degree and you must possess such a degree or its foreign equivalent (a baccalaureate or foreign equivalent degree plus 5 years of post-baccalaureate, progressive work experience in the field). You must meet any other requirements specified on the labor certification as applicable as of the priority date.
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Documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree, and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty. If a doctoral degree is customarily required, you must have a United States doctorate or foreign equivalent degree
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Exceptional Ability
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You must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” You must meet any requirements specified on the labor certification as applicable.
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You must meet at least three of the criteria below.
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NATIONAL INTEREST WAIVER
Those seeking a national interest waiver are requesting that the job offer, and thus the labor certification, be waived because it is in the interest of the United States. The endeavors that qualify for a national interest waiver are not defined by statute; instead, USCIS considers the 3 factors below. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them).
Factors USCIS Considers for National Interest Waiver ( Dhanasar three-prong legal framework)
- The proposed endeavor has both substantial merit and national importance.
- You are well positioned to advance the proposed endeavor.
- On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.
- The person qualifies as either a member of the professions holding an advanced degree or as a person of exceptional ability; and
- The waiver of the job offer requirement, and thus, the labor certification requirement, is in the “national interest.”
- The person’s proposed endeavor has both substantial merit and national importance;
- The person is well-positioned to advance the proposed endeavor; and
- On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.
i-140 approval -NVC-consular processing & Family of EB-2 Visa Holders
Consular processing is when the petition is filed outside of the US. Once approved, the petitioner goes to the US embassy in his/her home country or travels to his/her home country for an immigrant visa interview. The NIW green card processing time is typically between 3 to 9 months. Though this time greatly depends on the assigned USCIS Service Center and if the adjudicating officer requires a Request for Evidence (RFE).
Premium processing provides expedited processing for Form I-140, Immigrant Petition for Alien Worker, for a fee. USCIS guarantees that it will take some adjudicative action on the case within 45 calendar days for Form I-140 E21 NIW classifications, or it will refund the premium processing fee and will continue with expedited processing.
If your I-140 petition is approved, your spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States in E-21 and E-22 immigrant status, respectively.
Consular Processing: How it Works
An employment-based consular processing application begins when your I-140 petition is approved. Upon approval of the I-140, USCIS sends an approval notice to the attorney of record, or direct to the petitioner. USCIS then sends the petition itself, and notification of its approval, along to the National Visa Center (“NVC”). Please note that non-attorneys cannot represent you as your "attorney on record".
Outline of the Process: Employment-based Consular Processing
- The I-140 Immigrant Petition for Alien Worker: The I-140 petition will be filed with the U.S. Citizenship and Immigration Services. Once the I-140 Petition is approved, the case will be sent to the National Visa Center for further processing.
- Fee Bill Packet: This packet should arrive 3-8 weeks after the I-140 Petition is approved. It will require payment of the Immigrant Visa fees for the Intending Immigrant (s). If the intending Immigrant wishes to bring immediate family members to the United States, he/she should add them to his/her Immigrant Visa Petition at this time.
- Instruction Packet: When visas are available, we will receive the NVC “Instruction Packet.” This packet will request an online form from the Intending Immigrant(s) and copies of documents. DS-260.
- Notification of Interview: When the NVC has gathered and reviewed all forms, photos, and original documents for the Intending Immigrant(s), they will schedule an interview at the U.S. embassy in the Intending Immigrant(s)’s home country. The final stage of the Immigrant Visa application will be processed at the embassy. If the application is approved, the Intending Immigrant(s) will receive an Immigrant Visa stamp on his/her passport. S/he will then have six months to move to the United States.
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