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Immigration to USA

EB-2 NATIONAL INTEREST WAIVER (NIW) FAQ

ArceImmigrationLaw
1 . What is an EB-2 NIW?

 An EB-2 “National Interest Waiver” (“NIW”) is an immigrant visa which leads to permanent residence for individuals who work in the sciences, arts, or business and hold either an “advanced degree” or “exceptional ability,” and whose employment plans in the U.S. are of “national interest.” Ordinarily, the EB-2 PERM visa process requires that immigrants have both a job offer and a Labor Certification from the Department of Labor. However—and as the name suggests—the purpose of the EB-2 National Interest Waiver is to “waive” (or, “disregard”) these challenging requirements for those who can demonstrate that they have nationally important professional skills which they plan to contribute to the nation.

2. What types of professionals qualify for an EB-2 NIW?
  • The EB-2 NIW is an option for a wide range of professionals in the sciences, arts, or business, including healthcare practitioners, scientific researchers, engineers, financial experts, entrepreneurs, and artists, among many others.
3. Which classification would I qualify for—advanced degree or exceptional ability?
  • Advanced Degree
    An “advanced degree” in the sciences, arts, or business is either:
    • A Master’s Degree or higher (or its foreign equivalent); or,
    • A Bachelor’s Degree + 5 years of progressive, post-graduate experience.
  • Exceptional Ability
    If you do not have an “advanced degree,” you may alternatively show that you have “exceptional ability” in the sciences, arts, or business by documenting that you satisfy at least 3 of 6 principal criteria, including: 

    • 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 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); and / or,
    • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations.
4. Am I required to have a job offer or could I carry out my plans through self-employment?

There is no requirement for a job offer and you may carry out your plans through self-employment. An EB-2 NIW Visa petition can be filed based on any of the three scenarios listed below. Depending on your circumstances, we can help you chose which is best for you.

  • Self-Petitioning through your own registered company as a self-employed professional;
  • Self-Petitioning but providing proof of an existing job offer from an employer (or at minimum, that employer’s intention to hire); or,
  • Serving as Beneficiary of an EB-2 NIW petition filed on your behalf by a Sponsoring employer.

 

5. Can I apply for a green card with my EB-2 NIW?
If you are inside the United States in non-immigrant status and you qualify for an EB-2 NIW visa, you may be able to simultaneously apply for a green card application with your visa petition. This ability depends on the immigration regulations and policies existing at the time of filing. Please consult our firm for confirmation based on a full analysis of the immigration regulations and your immigration status.

6. Can my family members apply for a green card with me?

Generally, immediate family members (spouses and non-married children under the age of 21) in the U.S. in non-immigrant status can apply for green cards as your dependents, either at the same time, or after your own green card application and EB-2 NIW visa petition. This ability depends on the immigration regulations and policies existing at the time of filing. Please consult our firm for confirmation based on a full analysis of the immigration regulations and your immigration status. NIW Individuals living abroad are not eligible to apply for green cards inside the United States, although they may still file only for the EB-2 NIW, and ultimately obtain a green card via “consular processing” at a U.S embassy or consular office abroad.

7. How long is the processing time for the EB-2 NIW visa petitions?

The average waiting time for a final decision on an EB-2 NIW visa petition varies greatly but can take anywhere from 8 months to over a year. The processing time could be prolonged if issued a Request for Evidence. The processing time can vary greatly due to USCIS processing backlogs and the workload of the Officer reviewing your case.

8. Is Premium Processing available for EB-2 NIW visa petitions?

Premium Processing is not currently available for this type of petition. However, immigration regulations and policies change frequently, and our firm can assess this at the time of your consultation.

9. Will I be kept in protected legal status while I wait for a decision?
If you apply for a green card along with your EB-2 NIW visa petition, you will be kept in protected legal status based on the pendency of the green card application until it reaches a final decision. The same applies for family members who have also applied for green cards as dependents on your case.

 

10. Am I and my family members eligible to receive a work permit and travel permit while we wait?
You and any family members who have filed green card applications on the basis of your EB-2 NIW visa petition are eligible to apply for work and travel permits along with your applications. Depending on how quickly USCIS can process the permits, they should be issued in 3-5 months, on average.

 

This outline is intended to offer an overarching guide on the requirements for an EB-2 NIW Visa Petition. Each individual’s circumstances and qualifications are unique and therefore require careful analysis and the application of differing strategies. Navigating the complex EB-2 NIW Visa Petition process can be challenging, particularly in our current political climate and the state of affairs concerning the ongoing pandemic. Furthermore, the ability to apply for a green card in the U.S. based on an EB-2 NIW visa petition is dependent on the Department of State’s visa bulletin. We encourage that you contact our office to schedule a consultation as soon as feasible, particularly if you are presently in non-immigrant status, intend to permanently remain in the U.S., and believe you qualify for an EB-2 NIW Visa. More than ever, having an Expert and Board Certified Immigration Attorney by your side is critical to guiding you and your family on the most prudent decision that can safeguard your status in the United States. Our team of attorneys is here to help you ever step of the way.
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