Immigration Lawyer Chicago/National Interest Waivers (NIW): Eligibility, Requirements, Process, EB-2 Green Card FAQs
Procuring a National Interest Waiver, also known as an NIW, allows you to become a U.S. lawful permanent resident (LPR) through an EB-2 green card. The NIW allows you to contribute your work to the United States for the benefit of U.S. society. An NIW does not require employer sponsorship or a labor certification.
An EB-2 visa is an employment-based visa for second preference workers—individuals who are professionals and hold advanced degrees or who have exceptional ability. There are three categories for EB-2 visas:
The first two subcategories of this employment-based visa require a labor certification, which we will discuss below. The third subcategory, National Interest Waiver (NIW), is for those who qualify to work under the EB-2 visa without a labor certification. An NIW requires a cause or position that greatly benefits the United States.
In order to qualify for EB-2A and EB-2B, applicants must present an approved PERM Labor Certificate. PERM stands for a “Permanent Employment Certification,” which is issued by the Department of Labor (DOL) through ETA Form 9089. A PERM lets a U.S. employer hire a foreign national to be a permanent employee. The DOL’s approval shows that, for the applicant’s particular position, there are no qualified, willing U.S. workers able to do the job.
The process of obtaining a PERM is a lengthy one, requiring multiple steps, forms, costs, and governmental departments to go through. PERM has the potential to be denied at any step, which impacts your ability to begin your application process for your employment-based green card.
The National Interest Waiver is the third subcategory of the second preference employment-based green card. But what exactly does NIW mean?
EB-2 NIW is a green card to obtain lawful residency in the United States by proving that your skills and professional work can and will benefit society. That being said, you will need to make a strong case that your work is deserving of a waiver.
NIW is a national interest exemption for the need for labor certification (the PERM mentioned above). Since a PERM is not required, an NIW green card does not necessitate an official job or employer. The option is still available if you do have an employer, but they do not need to petition for you nor do they need to apply for a PERM.
Because there is no labor certification requirement, you are allowed to self-petition for your EB-2 NIW without the worry of the risk of losing your green card if a change of employment occurs.
NIW does not require a labor certificate and neither does the first preference employment-based green card—also known as EB-1. EB-1 visas are for individuals who can demonstrate extraordinary ability. To prove extraordinary ability, you must meet a certain set of criteria such as recognized prizes, published material in major publications, or proof of original contributions in your field. Because these outstanding achievements in your field demonstrate your expertise, you do not need to apply for a labor certificate.
The EB-2 NIW does not require you to show your extraordinary ability. This means you do not need to meet the extremely high standard of the EB-1 criteria. Yes, you do need to show that you are a vital employee and crucial to your field of work, but with evidence that differs from the first preference visa.
Although PERM takes quite a while and is an extensive process, it does not require you to show that your work is in the national interest. A PERM is for your own position on your employer’s scale. EB-2 NIW is on a broader scale.
But in addition to extra time and costs, you must have an employee sponsor you in order to get a PERM.
Because of EB-2 NIW benefits, choosing the NIW employment-based route may be advantageous over an EB-1 or labor certification. However, each case is individualized and there are also benefits to choosing to apply for PERM or EB-1 instead of an NIW green card. Because each situation is unique when applying for an employment-based green card, it is best to discuss options with your NIW lawyer. An immigration attorney can offer insight into the process and help you make the best decision for your position, especially as it regards the historical trends of EB-2 NIW approval and denial rates.
Since the National Interest Waiver is a subcategory of EB-2, you are legally required to meet the qualifications for the first two subcategories of the EB-2 visa. You must then present further evidence as to why your work can be used on a national level.
There are base criteria for EB-2 visas for either the advanced degree or the exceptional ability subcategories, including the following. For an advanced degree, you must have a U.S. advanced degree or a foreign equivalent. You must also have letters from your future or current employer. For exceptional ability, you must have a significant level of expertise in your field of work and meet EB-2 criteria.
You need to meet at least three of the legal requirements for EB-2:
There is not a set number of letters of recommendation required for EB-2 NIW eligibility. However, the more proof of evidence you can present to solidify your expertise, the stronger your case will be.
In addition to the foundational EB-2 criteria, the legal EB-2 NIW requirements specifically for the NIW category include:
Since the NIW application requires national regard, you will need to present evidence of how and why the U.S. should waive a labor certificate. In addition, to be considered for EB-2 NIW eligibility, you need an advanced degree—this means a master’s degree or higher or a foreign equivalent. If you only have a bachelor’s degree, an additional five years of experience is necessary to apply.
For all three subcategories of EB-2, including EB-2 NIW, you need to file Form I-140. Form I-140 is a petition for a foreign worker to become a permanent resident. In fact, all three employment-based categories (EB-1, EB-2, and EB3) require a Form I-140.
Because you are applying for an I-140 NIW, you can either self-petition or have your employer file on your behalf. Form I-140 is filed with the United States and Immigration Services (USCIS).
You can track your priority date to apply for a green card in the Department of State’s Visa Bulletin. Your priority date is the date that your I-140 is submitted. Once this date is reached, you can apply for an adjustment of status.
When your Form I-140 is approved, you can then move forward in your green card process by applying for an adjustment of status to a permanent resident.
Your expertise alone may not be enough to qualify for an NIW. Your work must include contributions to your field that focus on developing specific advances for the broader society.
Advances to the greater society of the United States can be in any societal sector, including the economy, education, public health, government, environment, or other systems of society. If your work improves the lives of the people of the United States, you may qualify.
For example, if your scientific contribution to medicine can save lives across the nation, your work can be furthered and be considered worthy for an NIW. You do not necessarily need to be in the field of saving lives, though. You can also have an idea that can be put into action to make housing more affordable. This could be a structural engineering position or a job that creates an economically savvy plan for affordable housing.
Or maybe you are in the field of environmental study as another example. Even if your contributions to your field are significant, they may not be enough to merit an NIW just because of the general field of your work. However, if your work can systematically contribute to the betterment of the country’s overall environmental condition, you would then be considered for an NIW.
In conclusion, your work may be significant in your field, but to qualify for an NIW, the practicality of your work must be applied to the United States on a broad scale. Once more, you must be able to be the one who advances the work you propose. Your position as an expert with a specific, nationally beneficial idea is crucial to the waiver of the labor certification requirement.
Processing time for the NIW green card through USCIS can take between three to nine months. However, this process may be extended if you need to present further documentation. If you get a Request For Evidence (RFE), you will need to present more evidence. If USCIS finds your presentation of evidence inefficient, they may deny you a waiver. This extends your NIW processing time.
There are two new rules for NIW.
Applying for an EB-2 NIW status can be complicated because of the number of forms and documents required. The NIW process can be broken down by the necessary documents needed for your application.
You will need to provide the following for the whole NIW application:
The EB-2 filing process requires a number of documents that each have their own fees. In total, the fees and forms include:
If your NIW application is denied, speak with your NIW lawyer about the next steps to take. You may be able to make a motion for your case to be reopened. You may also be allowed to make a case to the Administrative Appeals Office. Upon an EB-2 NIW denial, you are allowed to ask the USCIS officer to look at your case a second time with new evidence.
Your NIW attorney may also be able to provide you with insight on potential other green cards that may be best for you. With your qualifications, you could be eligible for other visas.
If you are wondering about the National Interest Waiver, the attorneys at Scott D. Pollock & Associates P.C. are here to answer your questions. With over 70 years of combined experience, an NIW attorney at our law firm will be able to help you navigate the process of applying for your EB-2 NIW. Applying for a National Interest Waiver can be a confusing process requiring a strong presentation of your skills. An NIW attorney will be able to help construct your case and fill out an NIW self-petition if need be. Contact us at 312.444.1940 to set up a consultation today.