EB-2 National Interest Waiver (NIW)
What Is the EB-2 National Interest Waiver (NIW)?
For foreign nationals who are highly skilled or who hold advanced degrees, there are several options for pursuing a green card in the United States. One of the more desirable methods over the last two years has become a process known as the EB-2 NIW, the employment-based second preference visa with national interest waiver. Although this method of obtaining a green card had been around for many years the criteria required to prove eligibility made it exceptionally difficult to qualify until late 2016 when the U.S. Supreme Court reset the threshold for eligibility, making it much easier for foreign nationals to qualify. The main advantage of the EB-2 NIW is that it offers a relatively swift route to permanent U.S. residency. Applicants can obtain residency without the sponsorship of an employer and without having to undergo the cumbersome and lengthy labor certification process.
EB-2 Visas: The Basics
EB-2 visas are available to two categories of applicants: (1) members of professions who hold an advanced degree (or the equivalent); or (2) those who can otherwise prove “exceptional ability” in their particular field in the sciences or arts, medicine, business, or athletics who will substantially benefit the national economy, cultural, or educational interests or the welfare of the United States. Applicants in the first group must be seeking employment in the United States that requires an advanced degree (such as a baccalaureate degree plus five years of progressive experience in the field), plus the required job qualifications. For aliens of extraordinary ability visas, applicants must be able to prove that their ability is “significantly above that normally encountered.”
What Is a National Interest Waiver?
Under the standard EB-2 visa process, applicants must follow the Labor Certification process, also known as the Program Electronic Review Management (PERM) process. This is a requirement through the United States Department of Labor, where a market test must be performed to prove that there are no qualified legal U.S.-based workers for the position in question.
The Labor Certification process can be long and time-consuming. An employer filing and sponsoring a green card process must first file a Labor Certification petition with the appropriate state agency. Once the petition is approved, the employer must begin a recruiting campaign, and then submit results of the campaign to the state agency. If the Department of Labor agrees that there are no American workers available to fill the position based on fair recruitment efforts, a Labor Certification will be issued. The entire process may take as little as six months, or as long as three years.
As an alternative, an individual can request that the Labor Certification requirement be waived because it is in the best interests of the United States to do so. This is known as the “National Interest Waiver,” or NIW. If an applicant can prove that it is in the national interest, both the job offer and Labor Certification requirements will be waived. The individual can petition USCIS for an EB-2 visa directly, rather than relying on an employer to petition for an employment-based visa.
There are several key differences between traditional EB-2 cases and EB-2 NIW cases. First, in an EB-2 case, an employer must be the petitioner, with the foreign national as the beneficiary of the application. With an EB-2 NIW cases, a foreign national can petition on his or her own behalf — or an employer can file a petition for him or her. Second, in an EB-2 case, the employer must go through the Labor Certification process with the Department of Labor, which can take a substantial amount of time. The Labor Certification process is waived in EB-2 NIW cases. Third, EB-2 cases require a job offer. EB-2 NIW cases waive the job offer requirement. Fourth, it is generally more difficult to be secure approval of an EB-2 NIW visa than it is to be approved for an EB-2 visa. However, by using a skilled and experienced EB-2 NIW attorney, such as the lawyers of Colombo & Hurd, foreign nationals can increase the likelihood of a favorable outcome.
The Three Prong Test for a National Interest Waiver
In 2016, the United States Citizenship and Immigration Services (USCIS) Administrative Appeals Office issued a ruling that established new guidelines for determining whether an applicant for an EB-2 visa is eligible for a NIW. In Matter of Dhanasar, USCIS clarified the requirements for receiving a NIW visa, and set forth a three prong test that applicants must meet in order to receive a visa.
Under the Dhanasar standards, an applicant must demonstrate the following three criteria:
- The foreign national’s proposed endeavor has both substantial merit and national importance;
- The foreign national is well-positioned to advance the proposed endeavor; and
- On balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements of the EB-2 category.
First, in evaluating whether a proposed endeavor has substantial merit and national important, USCIS will not limit applications to certain fields, such as science or technology. Foreign nationals in all professions may apply as long as they are pursuing endeavors that would benefit the United States. USCIS evaluates this criterion by looking at the potential prospective impact of the undertaking, through examining the importance of the problems that an applicant may address through his or her endeavor.
Second, in determining whether the applicant is well-positioned to advance the proposed endeavor, USCIS will look at a number of factors. This may include:
- Education, skills, knowledge and record of success;
- Model or plan for future activities;
- Progress towards achieving the proposed endeavor; and
- Interest of potential customers, users, investors, etc.
Applicants do not need to prove that their endeavors will be successful. Instead, they must show that they are in a good position to make their endeavor a success. This can often be demonstrated with documents such as a business plan with financial projections.
Third, USCIS will consider whether the United States would benefit from the applicant’s contributions even if American workers are otherwise available, and if the national interest is sufficiently urgent to warrant bypassing the labor certification process. In making this evaluation, a USCIS adjudicator must balance the national interest of requiring labor certifications to protect American workers against the benefits that the applicant would bring to the United States. The factors to be considered could include the impracticability of obtaining a job offer or labor certification, given the applicant’s qualifications or proposed endeavor, the U.S. would benefit from the applicant’s contributions, and the national interest in the applicant’s contributions is “sufficiently urgent” to necessitate foregoing a labor certification. This can often be achieved by showing that an applicant has unique and exceptional qualifications.
In addition to meeting the three prong test an applicant must also prove that he or she is a member of the professions holding an advanced degree, or an individual of exceptional ability in the sciences, arts or business.
How an Experienced EB-2 NIW Attorney Can Help
Our EB-2 NIW attorneys are highly skilled at helping clients navigate the immigration system, from gathering the necessary documentation through preparing for an interview and completing the final paperwork. Colombo & Hurd is dedicated exclusively to the practice of immigration law and we work collaboratively with our clients to help them achieve their goals. Please find below a chart of the standard process for the EB-2 NIW from the initial consultation through approval. As of early 2020, approvals are taking an average of just under a year for processing.