The National Interest Waiver: Petitioning for an EB-2 I-140

A foreign national with an advanced degree or exceptional ability can seek permanent residency in the United States through the Employment-Based Second Preference Visa (EB-2). EB-2 eligibility means the applicant must have one of the following:

• Advanced degree. A degree above a baccalaureate, such as a master’s or doctoral degree or its foreign equivalent, or a baccalaureate or its foreign equivalent, plus five years of post-baccalaureate, progressive work experience.
• Exceptional ability. Exceptional ability is a degree of expertise significantly above the ordinary in the sciences, arts, or business. The beneficiary must meet at least three exceptional ability regulatory criteria.

A person granted an EB-2 I-140 will be eligible to apply for a green card when their priority date is current.

While an EB-2 NIW can be sought with employer sponsorship, an individual can also self-petition.

What Is a National Interest Waiver?

The National Interest Waiver (NIW) is an employment-based immigration option that allows qualified immigrants to self-petition for permanent residency (a green card) without employer sponsorship. This waiver offers a unique opportunity for individuals whose work could bring immense value to the United States. By waiving the usual employer sponsorship and labor certification requirements, the NIW simplifies the process. However, it’s important to note that pursuing an EB-2 visa with an NIW still requires meeting all other EB-2 requirements.

Qualifying for the EB-2 classification does not automatically mean that the self-petitioner is eligible for a National Interest Waiver. The petitioner must demonstrate that the waiver is in the national interest. Applicants must prove that their work in the U.S. would considerably enhance the national economy, cultural or educational interests, welfare, or other interests of the U.S. The burden of proof rests with the petitioner or self-petitioner.

Who Qualifies?

To qualify for the NIW, the applicant must meet the following criteria:

• The proposed endeavor has both substantial merit and national importance.
• The applicant is well-positioned to advance the proposed endeavor.
• On balance, the United States would benefit from waiving the job offer requirements and, thus, labor certification.

USCIS officers assess each applicant on a case-by-case basis, which means the National Interest Waiver EB-2 process is highly subjective.

What Degrees and Abilities Are Exceptional?

The following are some common types of applicants who apply for an NIW. Key to all of them is that the exceptional abilities the applicant offers are in the national interest of the United States.

• Researchers and scientists. Those engaged in cutting-edge research or scientific pursuits in science, technology, medicine, engineering, or mathematics.
• Scholars and educators. Professors, academics, and researchers with exceptional records of achievement in their fields.
• Entrepreneurs and business leaders. Individuals whose endeavors have the potential to create significant employment opportunities, drive innovation, or otherwise benefit the U.S. economy.
• Artists and performers. Those with exceptional talent in the arts, visual arts, film, music, theater, or dance whose work has significant cultural or educational value.
• Physicians or medical professionals. Healthcare professionals, particularly those who will work in underserved areas or conduct research on disease or medical matters of national importance.
• Other professionals. Applicants with exceptional abilities in different fields, such as law or finance, whose work could have national significance.

Many people might qualify for an NIW, but being granted one is a document-intense process that requires due diligence and strategy.

How Our Immigration Attorneys Can Help

The NIW category requires applicants to present a compelling case that their work in the United States is in the national interest. An experienced attorney can help with this EB-2 process in several ways.

1. Complex legal requirements. Ensure the applicant meets all eligibility criteria and provides the necessary evidence to demonstrate their qualifications and the national importance of their work.
2. Case strategy. Develop an effective strategy for compellingly presenting the applicant’s case.
3. Navigate the subjective process. The NIW adjudication process is subjective. Different adjudicators interpret the criteria for determining “national interest” and “national importance” differently. An experienced Chicago immigration lawyer can craft the application to address this subjective nature of the process.
4. Staying up to date. Immigration lawyers are aware of ever-changing immigration laws, regulations, precedent decisions, and USCIS policies.
5. Handle Requests for Evidence (RFEs). If the USCIS issues a RFE or a Notice of Intent to Deny (NOID), an attorney will know how to respond and strengthen the case effectively.
6. Appeals and motions. In case of a denial, an attorney will knowledgeably advise on how to respond.

Self-petitioning for an EB-2 visa with an NIW is complex, particularly due to its subjective nature. Scott D. Pollock and Associates, P.C., is ready to make the process seamless.