The EB-2 National Interest Waiver (NIW), as a petition for the second -preference employment-based immigrant visa category, grants individuals holding an advanced degree in the field or exceptional ability in the sciences, arts or business areas, which would thus bring and advance substantial merit and national importance to the United States’ national interest, a pathway to permanent residence in the United States without employers’ sponsorship. The EB-2 NIW is an exception to the EB-2 immigrant visa category, under which a job offer of permanent position, sponsorship from particular employer and corresponding approved Labor Certificate are all required. The EB-2 NIW holders’ spouses and children under 21 would be eligible for permanent residency under the same visa status. EB-2 NIW Visa is subject to the annual numerical quota limitation of 40,000, which simultaneously shares with other EB-2 petitions. A cutoff date is also imposed to petitions for certain nationals, including China and India.
To qualify for EB-2 NIW Visa, the petitioner must demonstrate that:
Individuals who possess an advanced degree in the field or exceptional ability in the sciences, arts or business areas may be eligible for this type of EB-2 NIW Visa.
EB-2 immigration visa category is designed for foreign individuals who have an advanced degree in the field or exceptional ability in the sciences, arts or business areas, and job offers of permanent position which requires such professional degree or exceptional ability. EB-2 Visa generally requires both a job offer of permanent position and corresponding approved Labor Certificate, which is confirmed by the U.S. Department of Labor that the employers have gone through recruiting process but failed to find any competent and available U.S. workers for employment and thus have to seek for foreign sources of labor. EB-2 immigration visa category thus generally does not allow self-petition and requires employers’ sponsorship. To ironize employers’ hesitation to comply with the lengthy U.S. Labor Market Test to obtain the Labor Certificate, NIW petition bypasses the requirement of permanent employment offer and Labor Certificate and enables qualifying individuals, who show their admissions would be of substantial benefit to the United States, to self-petition for permanent residence in the United States.
The advanced degree requirement may be met if the individuals hold a U.S. or foreign academic or professional degree above the baccalaureate level, such as the Master’s degree, Ph.D., J.D. or law degree, or M.D. A baccalaureate degree plus 5 years progressive work experience in the field, which is considered the equivalent of a U.S. Master’s degree, may also qualify for the EB-2 advanced degree requirement.
In the absence of the advanced degree, if the exceptional ability in the fields of the sciences, arts or business, which refers to a degree of expertise significantly above that ordinarily encountered in the individuals’ specialized field, may be shown, the individuals would be eligible for EB-2 visa category. The exceptional ability must be supported by documentation which meets at least three of the following categories:
Besides the above six evidence categories, other comparable evidence of eligibility is also acceptable. Not every criteria applies to each individual, and moreover, the meanings of these criteria can be ambiguous. Visa2US offers consulting regarding which of these criteria best suit your potential EB-2 NIW case.
Besides basic eligibility, the Individuals must establish their qualification for NIW to circumvent the requirements of permanent employment offer and Labor Certificate by showing that the individuals’ proposed endeavor has both substantial merit and national importance, they are well positioned to advance the proposed endeavor, and, on balance, it would be beneficial to the United States to waive the EB-2 employment requirement.
The substantial merit of the proposed endeavor may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. However, any immediate or significant economic impact or benefits brought by the proposed endeavor is not required to show while such facts would benefit their EB-2 NIW petitions. On the other hand, the national importance of the proposed endeavor would be determined on its potential prospective impact. Besides the geographic scope, the actual impact and its significance in the individuals’ particular specialized fields would be evaluated.
The USCIS consider a wide range of factors, which must be supported by a preponderance of the evidence filed by the petitioners, to determine whether the individuals are well positioned to advance the proposed endeavor, including but not limited to the individuals’ education, skills, knowledge and record of success in related or similar efforts, a model or plan for future activities, any progress towards achieving the proposed endeavor, and the interest of potential customers, users, investors, or other relevant entities or individuals. However, due to unforeseeability and uncertainty of forecasting feasibility or future success, the USCIS does not require petitioners to demonstrate that guaranteed successful endeavors.
Last, the petitioner must demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a corresponding Labor Certificate, which means the benefits in the national interest brought by grant of EB-2 NIW petition must outweigh the important protection of domestic labor supply. The USCIS evaluate factors as a whole for analysis the satisfaction of this element, such as the difficulty for the individuals to secure an employment and for employers to obtain Labor Certificate, the benefit and contribution the United States would get from hiring the foreign individuals rather than other available U.S. workers, and sufficient urgency of the individuals’ contribution to forego the Labor Certificate process.
Once the abovementioned elements are satisfied, the USCIS would approve the NIW petition based on discretion.
The spouses and children under the age of 21 of individuals with advanced degree or exceptional ability qualify for permanent residency under the EB-2 Immigrant Program to accompany or follow the individuals with advanced degree or exceptional ability through the adjustment of status or consular processing. However, the Common Law marriage is not acceptable and a derivative beneficiary relationship would not be recognized accordingly.