EB-2 NIW: A Comprehensive Guide to the National Interest Waiver

What is the EB-2 NIW National Interest Waiver?

The EB-2 NIW (National Interest Waiver) visa is an immigrant visa designated for foreign nationals with a graduate degree or a bachelor’s degree and five years of professional experience or “extraordinary ability” in arts, sciences or business, who considers obtaining a U.S. green card. The EB-2 NIW visa, which is a subcategory of EB-2 visa, facilitates lawful residency in the United States through presenting how an individual’s skills and professional contributions serve the U.S. national interest. 

This visa category allows applicants to be exempt from the standard labor certification process, known as PERM, which is usually required for employment-based green cards. In this way, the EB-2 NIW visa eliminates the need for an official job offer or employer sponsorship, allowing self-petitioning.

What are the Benefits of EB-2 NIW?

• No need for a job offer or sponsorship: EB-2 NIW visa allows applicants to apply by themselves without requiring a specific job offer or employer sponsorship. 
• Path to green card (permanent residency): The EB-2 NIW visa leads directly to green card, i.e. permanent residency and offers the applicant the opportunity to live and work in the U.S. indefinitely.
• Family inclusion: The benefits of the EB-2 NIW visa extend to applicants’ spouses and unmarried children under 21 years old, granting them permanent residency in the U.S. 
• Broad range of occupations and countries: The EB-2 NIW visa covers a variety of occupations and nationals of several countries. Athletes, counselors, teachers, IT professionals, lawyers, scientists, engineers,  and many more can apply for this visa.
• Premium processing: For an extra fee, the processing time for Form I-140 application under the NIW can be decreased to 45 days. 

EB-2 NIW Requirements and Eligibility Criteria: Who Qualifies for an EB-2 NIW?

To secure the EB-2 NIW, applicants must demonstrate that they fulfill two key requirements:

• They qualify as professionals with graduate degrees, or at least five years experience on top of bachelor degree, or as individuals with exceptional abilities.

• They prove that waiving the job offer and labor certification requirements is in the national interest of the United States. Essentially, the applicants’ presence in the country should significantly benefit its economy, culture, education, or welfare.

Additionally, for USCIS to grant a EB-2 NIW visa, applicants should prove the following three criteria:

• The person’s proposed endeavor, i.e. the planned or intended effort or project that the applicant aims to undertake, has both substantial merit and national importance;
  • First, the applicant must demonstrate that the proposed endeavor which can be in any area including science, technology, health, and education, will be of significant value. For example, a scientist must prove that their research holds significant value, or a physician must show that the treatment that they will work on while in the U.S. is of substantial interest.
  • The applicant must then explain how they will contribute to the national interests of the United States. For example, an engineer could strengthen the U.S. economy with their innovations, or an educator could improve the education system with new teaching methods.
• The person is well positioned to advance the proposed endeavor; and
  • The applicant must demonstrate that they have the sufficient expertise and experience to perform the proposed endeavor. Such can be evidenced by educational background, work experience, awards and grants, conference participations, reference letters, and other notable achievements. 
  • The applicant should detail how they will sustain and develop their proposed endeavor in the U.S. Future plans and projects related to the proposed endeavor play an important role in this regard.
• On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.
  • This should be supported by documentation explaining why it is important to exempt the applicant’s skills and contributions from standard processes.

What are the Accepted Fields For EB-2 NIW National Interest Waiver?

Any field has the chance to be accepted for EB-2 NIW as long as the application fulfills the criteria for EB-2 NIW. That being said, some fields have better chances for the EB-2 NIW as they significantly benefit the United States. These fields include the following: 

• Science: Includes various scientific disciplines such as neuroscience, biology, physics, astronomy, and earth sciences.
• Technology: Includes sub-fields related to artificial intelligence, innovation, bitcoin, and electric cars.
• Engineering: Includes sub-fields related to industrial engineering, plant engineering, industry 4.0 standards, and electrical engineering. 
• Mathematics: Includes sub-fields related to data analytics and research analysts.
• Business: Includes entrepreneurial endeavors.
• Education: Includes teaching or research that addresses significant educational needs in the U.S.
• Health: Includes medical research or patient care. 
• Culture: Includes endeavors related to arts.

It is important to note that, if structured strategically, applications concerning any field can have a chance to be approved. As Oguz Law, with our experienced team dedicated to EB-2 NIW applications, we help you to strategically determine your proposed endeavor and carefully structure your application.

What are the Required Documents to Apply for an EB-2 NIW?

• Forms
  • Form I-140: Immigrant Petition for Alien Workers
  • G-28: Notice of Entry of Appearance as Attorney or Accredited Representative (only if you want USCIS to communicate with your legal representative)
  • ETA Form 9089
  • Form I-907: Request for Premium Processing Service (only if you want to use premium processing)

• Copy of Passport Including Biographical Page and Any Previous Visas

• Copy of Birth Certificate

• Most Recent Arrival/Departure card (I-94), copies of all DS-2019s, and Form I-20 forms (for F-1 or M-1 student), and EAD cards;

• Copy of Marriage Certificates and Birth Certificates of Family Members (if family members will apply for permanent residence status) 

• Supporting Evidence 
  • Detailed description of the applicant’s proposed endeavor, and evidence proving that the applicant satisfies EB-2 NIW criteria.
  • Supporting evidence may include CV, reference letters, statements, certificates and licenses.

How Can I Prove National Interest and What Kind of Evidence Do I Need to Present to Support My Application?

Applicants may prove national importance through showing that their proposed endeavor has the potential to create a significant economic impact, and/or related to research, pure science, and the furtherance of human knowledge, whether or not the potential accomplishments in those fields are likely to translate into economic benefits. (In re Dhanasar, 26 I&N Dec. 884, 892 (B.I.A. 2016)

Documents to support the application includes but not limited to the following: 

• CV,
• Professional licenses and certificates related to the person’s profession,
• Work related documents such as letter of employment, letters from potential employers, or business plan; to show that how the applicant will carry out the proposed endeavor while in the U.S.,
• Official academic records,
• Evidence of extraordinary ability such as evidence showing the applicant commended a high salary 
• A letter of intent explaining the proposed endeavor and its national importance,
• Documents proving the national importance of the proposed endeavor, such as U.S. governmental documents, documents showing economic contribution,
• Letters of reference from experts in the applicant’s field,
• Material about the person or their work published in professional journals, trade publications or major media sources,
• Membership to professional associations,
• Conference attendance,
• Patents, trademarks, copyrights and licenses,
• Documentation that the person’s publications are taught at the university,
• National or international awards,
• Scientific articles published by the applicant in professional journals or important media,
• Documentation that the person has carried out assessments of others’ work individually or as part of a group in the same or a similar field as the work to be performed.

Is It Difficult to Get an EB-2 NIW?

Getting an EB-2 NIW visa is not difficult with the right strategy, preparation, and guidance of Oguz Law. Applicants who can clearly demonstrate that they meet the EB-2 NIW criteria have a strong chance of success. Your chances is especially high if you:

• strategically present your proposed endeavor,
• have made unique contributions in your field,
• clearly document your contributions, qualifications, and achievements,
• explain in detail that you fulfill EB-2 NIW criteria, and submit necessary evidence,

EB-2 NIW Application Process: How Can I Apply For EB-2 NIW?

To apply for the EB-2 NIW visa, the applicant should fulfill EB-2 NIW criteria, and submit all required documents as well as evidence on their academic success, work experience, licenses, certifications, and their contributions to the field. Once the application is approved, applicants can either adjust their statute if they are already in the United States, or follow consular processing abroad. Carefully follow all these steps and counsel Oguz Law throughout the process.

Step-by-Step EB-2 NIW Application Process

• Eligibility Assessment: Assess whether you meet the eligibility criteria for the EB-2 NIW.

• Document Collection: Collect all essential documentation and proof of qualifications to support your EB-2 NIW petition. 

• Letter: Oguz Law will draft your letter explaining that you fulfill the EB-2 NIW criteria.

• Completion and Submission of Necessary Forms: Complete and submit necessary forms, along with the required supporting documents and proof of qualifications including your passport, previous visas, birth certificate, and filing fee to USCIS.

• Wait for Approval: USCIS will review your petition. There is no set processing time for review, and you can check the USCIS website for current processing times.

• Attend Interview (if necessary): If USCIS asks you to attend an interview as part of the review process, attend the interview at the designated USCIS office.

• Approval Notice: Upon approval of your EB-2 NIW petition, you will receive an approval notice from USCIS.

• Wait for Priority Date: After approval of the Form I-140, you have to wait for your priority date to become current so that you can proceed with the next steps. The priority date is the date when the USCIS receives your Form I-140 petition. You can track the progress of priority date movement through the monthly Visa Bulletin published by the Department of State. Once your priority date is current, you can apply for a green card either adjusting your status or through consular processing.

• Adjustment of Status or Application for Consular Processing: To obtain residence permit, you can apply for adjustment of status if you are already in the United States, or apply through consular processing if you are abroad.

• Receive Green Card: Once your green card application is approved, you will receive your EB-2 NIW green card, which grants you lawful permanent residence in the United States.

What are Some Common EB-2 NIW Interview Questions?

• Tell me about your educational background.
• Describe your professional experience.
• What is your current position and job responsibilities?
• Explain how your work will contribute to the U.S. national interests?
• What are your most significant professional achievements?
• What impact has your work had on your field or industry?
• What are the key points made in the letters of recommendation submitted with your petition?
• Which skills or expertise sets you apart from others in your field?
• How does your work and educational background demonstrate that you are well-positioned to advance the proposed endeavor?
• What are your future professional plans in the United States?

EB-2 NIW Processing Time and Timeline: How Long Does EB-2 NIW Take?

In the EB-2 NIW process, the first step is to file Form I-140. The processing time for this application currently ranges from 4 to 12 months, but this timeframe may vary. However, via premium processing, this time may be reduced to 45 calendar days.

Once the Form I-140 is approved, the green card application will be submitted. Beneficiaries must wait for their priority date to become current before submitting their green card application. This typically takes about one year from the time their priority date is published in the visa bulletin. 

Is Premium Processing Available For EB-2 NIW?

Yes, premium processing is available for EB-2 NIW applications. Premium processing shortens the processing time for the Form I-140 to 45 calendar days.

Is EB-2 NIW Premium Processing Worth It?

Premium processing for EB-2 NIW is worth it if you need a faster decision for time-sensitive reasons like job offers, travel, or having a limited duration on your current visa. You can also opt for premium processing only to know about the outcome of your application earlier.

What is the Premium Processing Fee For EB-2 NIW?

The premium processing fee for an EB-2 NIW petition is $2,805.

What Does EB-2 NIW Retrogression Mean?

EB-2 NIW retrogression refers to a situation where the demand for EB-2 visa numbers exceeds the supply. This causes a delay in the processing and availability of visas for applicants, resulting in a backlog. As a result, applicants may have to wait longer for their priority date to become current, meaning they cannot move forward with their green card application process until visas become available again. 

How Much Does EB-2 NIW Cost?

Administrative fees (excludes attorney fee)

• $715 for Form I-140, 
• $300 Asylum Program Fee
• $2805 if you wish to use premium processing for the Form I-140,
• Once the Form I-140 is approved, if you are already living in the U.S.:
  • $1440 per applicant for the green card application (Form I-485) if you are already living in the U.S. after the petition is approved,  
  • $85 as biometrics fee,
  • $200 – $400 medical examination fee.
• Once the Form I-140 is approved, if you are living abroad:
  • $235 USCIS immigrant fee,
  • $85 as biometrics fee,
  • $200 – $400 medical examination fee.
• Additional fees may apply for filing an immigration petition for a relative, or for other administrative expenses.

What Happens After EB-2 NIW Approval?

After the approval of your EB-2 NIW petition, you will proceed with either adjustment of status or consular processing. If you are already in the United States, you will apply for adjustment of status to become a lawful permanent resident. If you are outside the United States, you will undergo consular processing to obtain an immigrant visa. Upon approval of your adjustment of status application or immigrant visa, you will receive your EB-2 NIW green card, granting you permanent residency in the United States.

How Long Does It Take to Get a Green Card in EB-2 NIW?

Once the Form I-140 is approved, the green card application will be submitted. Applicants must wait for their priority date to become current before submitting their green card application. After application, the green card process takes approximately three to twelve months.

What are the Common Challenges and Issues Faced During the EB-2 NIW Application Process?

Documentation:

• Gathering sufficient and relevant evidence can be challenging. However, it is important to collect all documentation diligently to prove fulfilling the EB-2 NIW criteria. 
• Obtaining strong letters of recommendation might also be challenging especially given the difficulty of explaining EB-2 NIW visa and expectations to letter writers. As Oguz Law, we provide guidelines for letter writers to overcome this challenge, and explain to our clients thoroughly what we expect from the letters.

Proving National Interest:

• Proving the proposed endeavor’s national interest is one of the most challenging and important criteria which usually impacts the USCIS decision. As Oguz Law, we carefully design your proposed endeavor and provide you with all governmental and other necessary documentation from our excessive library to prove your proposed endeavor’s national importance.

Lack of Legal Guidance:

• Even though applying to the EB-2 NIW visa can be done without legal guidance, navigating the complex immigration laws can be challenging, and may result in denial. 
• Working with the experienced team of Oguz Law helps with overcoming the risk of denial and handling the complex immigration laws smoothly.

USCIS Delays, Requests for Evidence (RFEs), and Visa Bulletin Retrogression

• Long processing times and priority date backlogs can be challenging. Therefore we recommend you to plan ahead especially if you are on a visa staying in the U.S. with limited time remaining.

What Happens If EB-2 NIW is Denied?

Review the Denial Notice:

• Carefully read the denial notice to understand why your application was denied. 

File a Motion to Reconsider or Reopen:

• Motion to Reconsider: Motion to reconsider is requesting from the original officer to review their decision based on new legal arguments. If your EB-2 NIW application is denied, you can base your application on new legal arguments and request a reconsideration. 
• Motion to Reopen: Motion to reopen is requesting the original officer to review their decision based on the new evidence or change of circumstances provided. If your EB-2 NIW application is denied, you can provide new evidence or demonstrate new circumstances, and request a review. 

Appeal the Decision:

• If you are convinced that the decision of denial was wrong, you can challenge the denial if and as provided in detail in your denial letter, by submitting your appeal to the Administrative Appeals Office (AAO). 

Reapply or Consider Alternative Immigration Options:

• • Reapply: You can prepare a new application by addressing the issues leading to denial, and submit a new I-140 petition. If you plan to reapply, you must ensure that your new application is stronger and addresses all previously identified deficiencies.

• Consider Alternative Immigration Options: You can also choose to evaluate alternative visa options which might be better fit for your background and preferences.

Why Should I Seek Legal Guidance For My EB-2 NIW?

Expertise in Immigration Law:

• U.S. immigration law is complex and immigration attorneys, with their specialized knowledge, can help you overcome the challenges and navigate the complexities of the U.S. immigration law.
• With their expertise, immigration attorneys can help you tailor strategies to your specific circumstances, and prepare an application presenting the best of your background and increasing your chances of approval.

Maximizing Approval Chances:

• Immigration lawyers can guide you better in your application by assessing your eligibility, carefully determining your proposed endeavor, and presenting your case effectively. With legal guidance you can maximize your chance for approval.

Ensuring Compliance:

• Attorneys ensure that your application is accurate, complete, and submitted on time, avoiding mistakes that could lead to delays or denials.

Appeals and Options:

• In case of a denial, attorneys can guide you through options like appeals, motions to reconsider, or reapplying with a stronger case.

Work with Oguz Law’s EB-2 NIW Immigration Lawyers

When navigating the complex process of obtaining an EB-2 NIW visa, partnering with experienced immigration lawyers can make all the difference, and prevent a denial of the EB-2 NIW visa. At Oguz Law, our team of EB-2 NIW immigration lawyers brings years of expertise and years of success to the table to make sure that you smoothly obtain your EB-2 NIW visa. We understand the complexities of immigration law and are dedicated to providing personalized guidance tailored to your unique situation. From strategically drafting your proposed endeavor to preparing and filing your petition, we are committed to advocating for your best interests every step of the way. During the process, we highly value being in close contact with our clients, provide them with guidance, and answer their questions. By choosing Oguz Law, you can trust that you’re working with a team that prioritizes your goals and strives for excellence in every aspect of your EB-2 NIW journey.

Frequently Asked Questions About EB-2 NIW

Can I Apply For EB-2 NIW From Abroad?

Yes, you can apply for EB-2 NIW from abroad.

Is EB-2 NIW Faster Than Other EB-2 Categories?

EB-2 NIW processing times can vary. While premium processing is available, actual processing times depend on case specifics and USCIS workload.

Can I Apply EB-2 NIW By Myself?

Yes, you can apply for EB-2 NIW without an attorney, but it’s advisable to seek legal guidance to navigate the complexities and increase the chances of approval.

How Long is EB2-NIW Valid?

EB-2 NIW grants permanent residency, commonly known as a green card, which is typically valid indefinitely as long as you maintain residency requirements.

Does EB-2 NIW Require Sponsorship?

No, EB-2 NIW does not require an employer sponsorship or a job offer, and allows for self-petitioning.

How Many Letters of Recommendation Do You Need For EB-2 NIW?

There is no specific number of recommendation letters required for an EB-2 NIW petition. Instead, it’s important to focus on the quality and impact of the recommendation letters. Generally, including letters from experts in your field who can attest to your exceptional ability or the national importance of your work is beneficial. While there is no set minimum, providing at least six recommendation letters that effectively support your petition can strengthen your EB-2 NIW application.

How to Strategically Determine the Proposed Endeavor?

Determining the proposed endeavor is the most important part of your application. If you carefully present your professional background and cleverly determine your proposed endeavor, your chances of success will increase immediately. For determining your proposed endeavor wisely, stay abreast of the latest U.S. policy priorities and make sure that your proposed endeavor is in line with the U.S. policies. Moreover, highlighting technological, economic, and pure scientific aspects of your application will increase your chances even further.

Is There an Interview For EB-2 NIW?

Typically, EB-2 NIW petitions do not require an interview as part of the adjudication process. However, in some cases, USCIS may request an interview to further evaluate the petition or clarify certain aspects of the applicant’s eligibility. If an interview is requested, the applicant will be notified by USCIS, and they must attend the interview at the designated USCIS office. It’s essential to prepare thoroughly for the interview and provide any requested documentation or information to support your EB-2 NIW petition.

For applicants pursuing consular processing for an EB-2 NIW (National Interest Waiver), an interview at a U.S. consulate or embassy is typically required as part of the green card application process. Unlike the adjustment of status process within the United States, where applicants file Form I-485, consular processing involves submitting the necessary documentation to a U.S. consulate or embassy in the applicant’s home country or country of residence. During the consular interview, an officer will review the applicant’s qualifications, supporting documents, and the reasons for seeking the visa. 

What is the Professional Plan For EB-2 NIW?

The professional plan for EB-2 NIW involves showing your contributions in your field, and future plans for carrying out your proposed endeavor.

Can I Apply For EB-2 NIW While on F-1?

Yes, if you fulfill the EB-2 NIW criteria, you can apply for EB-2 NIW while on an F-1 visa, whether or not you are still studying.