If you are seeking permanent residency, an employment-based visa such as the EB-2 National Interest Waiver (NIW) offers many advantages.  The processing time for most applicants is relatively short when compared to the alternatives and it has the benefit of providing a direct path to a green card without the need to go through the time consuming and difficult labor certification process.

However, proving that you qualify for this type of visa does require a fair amount of leg work.  In addition to meeting the requirements for an EB-2 visa, you must also prove that you qualify for a national interest waiver so that you do not need a job offer or to obtain a labor certification for the visa.  The process can be daunting, but with the advice and assistance of an experienced NIW Visa attorney, it can be accomplished in relatively short order.

At Colombo & Hurd, our practice is dedicated to immigration law.  We work with our clients to help them achieve their goals including working with a substantial number of professionals in a variety of fields to help them obtain the green card through the NIW process.

What Is the EB-2 National Interest Waiver (NIW) Visa?

To qualify for an EB-2 visa, a petitioner must either hold an advanced degree (or the equivalent) or have an exceptional ability in their field that would substantially benefit the United States.  An advanced degree includes an academic or professional degree above the baccalaureate level, which can either be from an American or foreign institution, provided that it is the equivalent of a U.S. degree.  Alternatively, a foreign national can demonstrate that he or she has the equivalent of an advanced degree with proof of a bachelor’s degree plus at least give years of progressive professional experience.

If an applicant does not meet either of these qualifications, he or she can obtain an EB-2 visa by showing that she has an exceptional ability in a specific field that substantially above what would normally be encountered. For example, an artist may be able to demonstrate that he or she has extraordinary ability above what is typical for other artists in their field, and that her talent would benefit the United States.

The traditional EB-2 visa requires sponsorship by an employer.  The company submits the visa application on behalf of the individual, and then must undergo the labor certification process, which can take a considerable amount of time.  Because individuals cannot petition for their own visa with the standard EB-2 visa and obtaining a labor certification can be a lengthy process, many foreign nationals choose to obtain what is known as a National Interest Waiver (NIW) visa.

With a NIW visa, an applicant must first establish that they are eligible for an EB-2 visa.  Once they pass that hurdle, they must then meet the additional requirements of a NIW visa.  The United States Citizenship and Immigration Services (USCIS) employs a three part test to determine if a waiver should be granted. An applicant must demonstrate:

  1. That their proposed endeavor has both substantial merit and national importance;
  2. That they are well-positioned to advance the proposed endeavor; and
  3. That, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

As to the first prong, an applicant must show that his or her work is related to an important national goal and that their work is beneficial to the United States.  USCIS will consider its potential impact on the country, both in geographic terms and more broadly.  This element can be met by individuals in a number of professionals, including those in business, science, the arts, technology, education, entrepreneurship, and health.

Next, the applicant must show that they are in a good position to advance their proposed endeavor.  This can be demonstrated through their experience, education, record of success, interest of potential customers or investors, and a number of other factors.  Letters from former colleagues, clients and employers are often helpful to establish that an applicant has played a significant role in past endeavors, and therefore is well-positioned to advance future endeavors.

Finally, to prove that issuing the waiver would be beneficial to the United States, a USCIS officer will evaluate a number of factors, and determine if — on balance — it would be impractical for the applicant to secure a job offer or a labor certification.  One of the key criteria used in this evaluation is whether qualified U.S. workers are available, and if so, the country would still benefit from the foreign national’s contributions.

For professionals considering immigrating to the United States, an EB2 NIW is a one route to be considered. For most applicants — other than those from India and China — this type of visa also allows for the simultaneous petition for adjustment of status and for a work permit and the ability to continuously maintain lawful status in the US during the pendency of the application.  This is important, as it can allow applicants to remain in the United States even after their current visa expires, and to gain work authorization pending approval of their visa.

Applying for a Green Card through the NIW

 There are numerous steps involved in filing for an EB-2 NIW green card.  Because these cases are often complex, it is generally recommended that individuals work with a skilled NIW visa attorney to help them through the process and maximize their chances of a favorable outcome.

The primary form that is filed for an EB-2 NIW case is the I-140, Immigrant Petition for Alien Workers.  This form and supporting documentation will be sent to either the Nebraska Service Center (NSC) or the Texas Service Center (TSC), depending on where you live.  These are the only two USCIS service centers that process NIW visa applications. Depending on your case, you may be required to file other immigration forms.  Consult with your immigration attorney to determine what forms may be filed with your I-140 package. Of course, if processing domestically and seeking an immediate adjustment you will want to file the I-140 simultaneously with the I-485 Application to Adjust Status to Lawful Permanent Residency and the I-765 Application for Employment Authorization.

Along with your I-140, you will need to file a petition letter, reference letters, and all other evidence that supports your NIW visa application.  While your attorney will give you specific instructions about the necessary documentation, it will generally include:

  • A copy of your passport, including all pages with stamps;
  • A copy of your current visa status;
  • Letters of recommendation;
  • Copies of diplomas from your highest degrees, along with an evaluation certifying that the degree is the equivalent of a U.S. degree if it is from a foreign institution;
  • A copy of your resume/CV;
  • Records of any publications or citations to your works;
  • Evidence of your work history, such as a letter from a previous employer detailing your position and responsibilities;
  • Copies of any presentations that you may have given;
  • Evidence of any awards or accomplishments;
  • Proof of membership in any professional societies or associations;
  • Information about patents, contracts, licenses, and technology transfers; and
  • Published materials about you.

These documents will be used to support a legal brief written by your attorney in support of your petition for a NIW green card. Together, the entire package will be submitted to the appropriate service center.  No originals should be submitted, and all documents should be translated into English (accompanied by a certification by the translator).

How an Experienced NIW Visa Attorney Can Help

If you are interested in a green card through the National Interest Waiver visa program, Colombo & Hurd can help.  We have helped a myriad of clients obtain EB-2 visas, both through the NIW and the traditional process.  While we cannot guarantee results, we can promise that we will work diligently on your behalf in order to increase the likelihood of a favorable outcome. That said, as of the writing of this information in 2019 we have never received a denial of a EB-2 NIW Application.

We offer services in a number of languages and have attorneys that speak Spanish, Portuguese and Italian. To learn more, contact our office online, or by calling our Orlando office at (407) 478-1111, our Tampa Office at (813) 444-1114 or our Miami office at (305) 455-0590.