The EB-2 National Interest Waiver (NIW) is one of the most powerful green card (permanent resident) options available to highly skilled professionals. It allows foreign nationals to bypass the standard requirements of a U.S. employer sponsoring their petition and the lengthy labor certification process. Because of the fewer hoops to jump through, it is often less expensive than an EB-3 or EB-2 with PERM process. It is also one of the few options that one can do independently without the cooperation of a US employer, or not having a US employer at all.
However, getting an EB-2 NIW isn't automatic—it's a strategic process that requires careful preparation and compelling evidence to convince the USCIS that your work is in the national interest of the United States.
In this guide, we'll walk you through the steps required to help you succeed with your EB-2 NIW petition.
Step 1: Determine Eligibility for EB-2 NIW
The first step is understanding if you qualify for an EB-2 visa. To be eligible, you must fall into one of two categories:
Advanced Degree Professional: You must hold a U.S. advanced degree (Master’s, Ph.D., or equivalent foreign degree) or a Bachelor’s degree with at least five years of progressive work experience in your field.
Exceptional Ability: If you don't have an advanced degree, you can qualify by showing exceptional ability in the sciences, arts, or business. This requires meeting at least three out of seven regulatory criteria (e.g., letters of recommendation, industry awards, publications, etc.). The full list of the regulatory criteria is below:
Criteria
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
Other comparable evidence of eligibility is also acceptable.
Once you meet the base eligibility for EB-2, the next question is whether you can qualify for the National Interest Waiver itself.
Step 2: Prove Your Work Benefits the U.S. National Interest
The hallmark of the NIW is proving that your work significantly benefits the U.S. To do this, the USCIS uses a test derived from the Matter of Dhanasar case, which outlines three prongs:
Substantial Merit and National Importance: You must demonstrate that your field of work has substantial merit and a wide-reaching impact on a national scale. For example, research that contributes to public health, environmental sustainability, or technological innovation could qualify.
Well-Positioned to Advance the Proposed Endeavor: Here, you must show that you have the necessary skills, qualifications, and record of success to advance your proposed work. Documentation like publications, awards, patents, and professional endorsements from experts in your field are key pieces of evidence.
Balance of U.S. Interests: Finally, you need to show that waiving the labor certification requirement would benefit the U.S. more than requiring it. This typically means demonstrating that the national interest would be served more efficiently or effectively by allowing you to continue your work without a U.S. employer sponsorship.
Step 3: The Role of ETA-9089 in the EB-2 NIW Process
While you can bypass the labor certification process with an EB-2 NIW application, the Application for Permanent Employment Certification (ETA-9089) is still involved in the petition, though not submitted to the Department of Labor (DOL). Instead, it is filed as part of your application to the USCIS.
In the typical EB-2 process, the ETA-9089 is submitted to the DOL by a U.S. employer to certify that there are no qualified U.S. workers available for the job. For the EB-2 NIW, the requirement to complete a labor market test is waived, but the principles of the ETA-9089 still play a critical role in USCIS's evaluation of the waiver. You must demonstrate that waiving the labor certification is in the U.S.'s national interest.
Though the form itself is not submitted to the DOL, you will need to make a strong case, in line with the ETA-9089 standards, to prove that your work offers such unique benefits to the U.S. that bypassing the traditional labor certification is justified.
Step 4: Build a Strong Case with Supporting Evidence
Building a compelling case is all about gathering strong evidence. Here are some key documents you may need:
Expert Letters of Recommendation: Letters from recognized experts in your field explaining why your work is of substantial merit and importance can significantly boost your petition.
Publications and Citations: If your work has been published or cited by other professionals, it's strong evidence of your influence and contributions.
Evidence of Awards or Memberships: Any recognition you've received from professional organizations or notable awards can help show your exceptional ability.
Detailed Personal Statement: You'll need to explain in your own words, how your work serves the national interest of the United States. This is where you clearly align your qualifications with the Dhanasar criteria.
Step 5: File Form I-140 and Supporting Documentation
Once you have gathered your evidence, it's time to file Form I-140, Immigrant Petition for Alien Workers, along with all your supporting documentation, including the ETA-9089 as part of the package. This form is the core of your EB-2 NIW petition, and it must be completed carefully to avoid delays.
After filing, USCIS will review your petition. In some cases, the USCIS may issue a Request for Evidence (RFE) if they believe your petition needs more documentation. This is common and should not be seen as a negative—simply an opportunity to provide additional support for your case. For you mind's sake, think, the cup is always half-full :)
Step 6: Adjust Status or Apply for Consular Processing
Once your I-140 is approved, you have two options depending on where you are:
If you’re inside the United States, and your priority date is current, you can file for an Adjustment of Status (Form I-485) along with a work authorization (EAD - I-765) (this is optional) as well as the optional Advance Parole Document (I-131) to receive your green card. This allows you to stay in the U.S. while your application is processed.
If you’re outside the U.S., you will need to go through consular processing, which involves attending an interview at a U.S. consulate abroad.
Final Thoughts: Crafting a Winning Petition
The EB-2 NIW is one of the most sought-after paths for highly skilled individuals seeking permanent residency in the U.S., but it’s not easy. Success requires more than just being highly qualified—it demands a strategically crafted petition, that highlights your achievements and demonstrates how your work aligns with the national interest of the U.S.
This is one of those applications where there is definitely value added by working with an experienced immigration attorney can significantly increase your chances of success. An attorney can help you organize your evidence, craft a persuasive narrative in the attorney's submissions and cover letter, and respond to any RFEs efficiently if the need arises.
For a smoother process and a higher likelihood of success, make sure you're informed, prepared, and supported by professionals who understand the nuances of this unique immigration pathway.
Good luck on your journey to securing the EB-2 NIW and making your mark in the U.S.!
Need help with your EB-2 NIW petition? Contact US CAN Visa Legal LLC (www.uscanvisa.com) to discuss your unique case and how we can help you achieve success!
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