The EB-2 National Interest Waiver (NIW) green card

The EB-2 National Interest Waiver (NIW) Green Card

Most individuals applying for an employment-based green card must go through the Program Electronic Review Management (PERM) process.  This is a lengthy process that is meant to test the U.S. labor market and determine the minimum prevailing wage that must be paid to the beneficiary of the visa.  Currently, the PERM process is taking at least 2 years.

The EB-2 National Interest Waiver (commonly referred to as NIW) can be filed without going through the PERM process, so it is a nice alternative for an employment-based green card if the individual fits the criteria.  Additionally, most employment-based green card petitions need to be sponsored by an employer.  The NIW is one of the few visas where an individual can self-sponsor, meaning no actual job offer is required.  However, this is still considered a visa in the EB-2 category, which means that a beneficiary is subject to the EB-2 Visa Bulletin.  For September 2023, these are the final action dates for the EB-2 category:

These dates indicate when an application for a green card may be filed, either at the consulate or by filing an I-485 Application to Register Permanent Residence or Adjust Status, as compared to the date the I-140 was filed.  The dates in this chart are priority dates (for an NIW, the date the I-140 was filed; for PERM-based green cards, the date the PERM was filed).  For “all chargeability areas,” the Visa Bulletin is often current (C).  At this time, there is a delay of over one year between filing the NIW petition and the ability to file for the green card.  If the Visa Bulletin indicates a “C,” both the I-140 and the consular application/I-485 may be filed at the same time.

Because this is an EB-2 green card, individuals from India (and China to a lesser degree) are still subject to extremely long backlogs in filing for their green cards.  However, the NIW petition does speed up the green card process by at least 2 years by not having to go through PERM.  Therefore, the NIW is still a good idea for Indian and Chinese nationals, even though they are still subject to a backlog.

Eligibility for an EB-2 National Interest Waiver green card

To be eligible for the EB-2 NIW green card, the first step is to demonstrate that the applicant is eligible for the EB-2 category.  The requirements are either:

• To hold an advanced degree: a master’s degree or its foreign equivalent, or in the alternative, a bachelor’s degree or its foreign equivalent plus 5 years of post-baccalaureate, progressive work experience in the field.  Unfortunately, a three-year bachelor’s degree will not equate to the equivalent of a U.S. bachelor’s degree; or

• 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.”  To demonstrate exceptional ability, three of the following criteria must be met and documented with evidence:

• Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability;
• Letters from current or former employers documenting at least 10 years of full-time experience in your occupation;
• A license to practice your profession or certification for your profession or occupation;
• Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability;
• Membership in a professional association(s);
• Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations; *** and
• Other comparable evidence of eligibility is also acceptable.

*** Letters of recommendation are typically provided for this criterion.  The letters must clearly indicate the author's authority and expertise (their own detailed resume) and knowledge of the beneficiary's achievements (this has to go beyond “s/he is a nice, honest person.”  The author must give concrete examples of the applicant’s achievements and significant contributions to his/her industry).  The more renowned the author, the better.  Letters from government agencies always possess high evidentiary value.

Once the qualification of EB-2 is established, the applicant must then establish that s/he is eligible for the National Interest exemption.  Those seeking a National Interest Waiver are requesting that the job offer (thus establishing the ability to self-petition), and the labor certification (PERM), be waived because it is in the interest of the United States.  There are 3 prongs to the National Interest qualifications:

• The proposed endeavor has both substantial merit and national importance (not just local importance);
• The individual is well positioned to advance the proposed endeavor; and
• On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

For more guidance on these factors in general and how USCIS evaluates them for those pursuing endeavors in STEM and entrepreneurs, please see the USCIS policy manual.

Filing the I-140 immigrant petition with United States Citizenship and Immigration Services (USCIS)

The NIW is filed with the I-140 Immigrant Petition through USCIS.  In addition to filling out the forms, the applicant must include a letter in support of the petition along with all relevant evidence and an explanation of how s/he meets the requirements of the regulation.  This is the heart of the NIW petition, as it contains the argument that the applicant meets the regulatory criteria.

USCIS will either approve the petition, or it may issue a “Request for Evidence” (RFE).  An RFE is issued if USCIS requires further evidence before it can approve the petition.  A petitioner then has 90 days to submit the required evidence to USCIS.  If the petitioner does not reply to the RFE, USCIS will deny the petition.

In November 2023, USCIS filing fees to file the I-140 Immigrant Petition remain at $700.  Premium processing, previously unavailable for the NIW, is now available effective January 30, 2023.  The cost is $2,500 (it will increase to $2,805 on February 26, 2024) to receive adjudication within 45 calendar days.  The current regular processing time for the NIW is 10.5 months, so premium processing is now an attractive, albeit expensive, option for the NIW.

Filing for the green card

The final step in the green card process is to file the application for a green card.  A foreign national can either attend an interview at the U.S. consulate in the country of their birth or file the I-485 Application to Register Permanent Residence or Adjust Status within the U.S.  Upon approval of this application, the foreign national will obtain a green card and will be eligible to remain in the U.S. as a Legal Permanent Resident.

A foreign national is able to file the green card application when their priority date (in this case, date the I-140 was filed) is current as per the Visa Bulletin.  Many times, the priority date is current which means that the foreign national is able to file the I-485 concurrently with the I-140.  For nationals of India and China, however, there is always a visa backlog.  For Indian nationals, this backlog is currently 12 years.  This means that an Indian national, based on the current Visa Bulletin, needs to wait 12 years before s/he can apply for a green card.  Until a visa is available to them, the foreign national must remain in the U.S. on a nonimmigrant visa, such as the H-1B visa.

Each member of the applicant’s family (spouse and children) must file a separate I-485; the I-140 holder is the main applicant, and the members of his/her family are derivative applicants.

Conclusion

The EB-2 National Interest Waiver green card is a nice option for an applicant who has an advanced degree or exceptional ability but does not rise to the level of EB-1A extraordinary ability.  As long as the applicant can demonstrate that it is in the United States’ national interest to forgo the requirements of a job offer and labor certification, s/he can apply without PERM and without a specific job offer. 

This article is not to be construed as offering legal advice.  The guidelines listed in this article are general; each beneficiary’s particular case has its own set of facts which may require a different process than what is outlined above.  Therefore, it is highly encouraged that an applicant interested in the EB-2 NIW green card engage an attorney familiar with the process before starting any application.