The Employment-Based Second Preference (EB-2) visa is designed for professionals holding advanced degrees or individuals with exceptional abilities in specific fields. Within this category, the National Interest Waiver (NIW) offers a unique pathway for certain professionals to obtain U.S. permanent residency without the traditional requirements of a job offer or labor certification. This article provides a detailed overview of the EB-2 NIW, including eligibility criteria and the application process.
Understanding the EB-2 NIW
The EB-2 visa typically requires applicants to have a job offer from a U.S. employer and an approved labor certification. However, the NIW provision allows these requirements to be waived if the applicant’s work is deemed to be in the national interest of the United States. This means that eligible individuals can self-petition for permanent residency, streamlining the immigration process.
Eligibility Criteria
To qualify for an EB-2 NIW, applicants must meet both the general EB-2 requirements and specific NIW criteria:
EB-2 Eligibility:
- Advanced Degree Professional: The applicant must hold an advanced degree (master’s or higher) or a bachelor’s degree with at least five years of progressive work experience in the field.
- Exceptional Ability: The applicant must demonstrate exceptional ability in the sciences, arts, or business, indicating a degree of expertise significantly above that ordinarily encountered.
NIW Specific Criteria:
Established by the 2016 precedent decision in Matter of Dhanasar, the following three-pronged test determines NIW eligibility:
- Substantial Merit and National Importance: The proposed endeavor must have significant value and broad implications benefiting the United States. This can encompass fields such as business, entrepreneurship, science, technology, health, culture, or education.
- Well-Positioned to Advance the Proposed Endeavor: The applicant should possess the necessary education, skills, knowledge, and a track record of success to effectively advance the proposed endeavor. Evidence may include degrees, publications, patents, or endorsements from experts in the field.
- Benefit to the United States by Waiving Labor Certification: It must be demonstrated that waiving the job offer and labor certification requirements would be beneficial to the U.S., considering factors such as the impracticality of securing a job offer or the urgency of the applicant’s contributions.
Application Process
The process for obtaining an EB-2 NIW involves several key steps:
Prepare the Petition:
- Form I-140: Complete and sign Form I-140, Immigrant Petition for Alien Worker.
- Supporting Documentation: Gather evidence demonstrating both EB-2 eligibility (advanced degree or exceptional ability) and fulfillment of the NIW criteria. This may include academic records, letters of recommendation, publications, and a detailed plan outlining the national importance of the proposed endeavor.
File the Petition:
- Submission: Submit the completed Form I-140 along with the supporting documents to the appropriate U.S. Citizenship and Immigration Services (USCIS) service center.
- Filing Fee: Pay the required filing fee of $715. Premium processing, to fast track the application, incurs an additional fee of $2,805.
USCIS Review:
- Processing Time: USCIS will review the petition, a process that can take several months. For premium processing clients, USCIS aims to adjudicate the case within 15 to 45 calendar days.
- Requests for Evidence (RFE): If additional information is needed, USCIS may issue an RFE. Respond promptly with the requested documentation to avoid delays.
Adjustment of Status or Consular Processing:
- Within the U.S.: If the applicant is already in the U.S. under a valid visa, they may file Form I-485 to adjust their status to permanent resident.
- Outside the U.S.: Applicants residing abroad will undergo consular processing, attending an interview at a U.S. embassy or consulate in their home country.
Conclusion
The EB-2 NIW offers a valuable opportunity for professionals whose work benefits the United States to obtain permanent residency without the traditional constraints of a job offer or labor certification. By understanding the eligibility requirements and navigating the application process diligently, qualified individuals can significantly contribute to the national interest while achieving their immigration goals.