What is a National Interest Waiver, and do I need an employer or job offer?

An NIW waives the normal EB-2 requirements of a job offer and a PERM labor certification. Because those are waived, you may self-petition — file Form I-140 for yourself without an employer sponsor. You must still qualify for EB-2 (advanced degree or exceptional ability), and you must demonstrate that your future endeavor will serve the national interests of the United States. The USCIS requires that you describe your endeavor with specificity. USCIS expects a specific, concrete endeavor rather than a broad field. Strong technology-sector cases typically involve founders or key engineers building systems with demonstrated adoption. For a successful case, it is important to document real users, deployments, revenue, funding from credible investors, patents, adoption by U.S. institutions, peer recognition, and independent expert letters that connect the endeavor to a documented U.S. national priority.

What is the legal standard for an NIW?

USCIS applies the three-prong test from Matter of Dhanasar: (1) your proposed endeavor has both substantial merit and national importance; (2) you are well positioned to advance the endeavor; and (3) on balance, it would benefit the United States to waive the job-offer and labor-certification requirements. All three prongs must be met.

Who is qualifies for an EB-2 NIW?

Applicants who hold an advanced degree (or a bachelor's plus five years of progressive experience) OR who can show exceptional ability in the sciences, arts, or business. Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. It is established by meeting at least three of six regulatory criteria — an academic record or degree relating to the area of exceptional ability; letters documenting at least ten years of full-time experience in the occupation; a license or certification to practice the profession; a salary or other remuneration demonstrating exceptional ability; membership in professional associations; or recognition for achievements and significant contributions by peers, government entities, or professional or business organizations — followed by a determination that the evidence as a whole establishes exceptional ability. These are two independent routes into EB-2: an applicant who qualifies through an advanced degree does not also have to prove exceptional ability, and an applicant who qualifies through exceptional ability does not need an advanced degree.

Can my family get green cards through my National Interest Waiver?

Yes. Your spouse and unmarried children under 21 can be included as derivatives and obtain green cards based on your NIW petition. Under the Child Status Protection Act, a child’s age for this purpose is their age when a visa number becomes available, reduced by the time the I-140 was pending, and the child must generally apply for the green card within one year of that date — so a child who turns 21 during the process can often still qualify, but the timing needs to be tracked closely.

How long does an EB-2 NIW take?

After the petition is approved, you can complete the green card only when an immigrant visa number is available.

What is the Priority Date?

Your /priority date/ (the date the petition is filed) determines your place in line for the green card, and you can obtain the green card only when your priority date is current under the Department of State Visa Bulletin for your classification (EB-2) and your country of birth.

Consular Processing vs. Adjustment of Status?

Adjustment of status (Form I-485) is available if you are in the United States and a visa number is available. You remain in the U.S. while it is pending, you can apply for a work permit (EAD) and advance parole, and you receive the green card without leaving the country. Consular processing means the approved petition goes to the National Visa Center and you attend an immigrant visa interview at a U.S. consulate abroad, becoming a permanent resident when you are admitted. You must be outside the United States for the interview and it does not provide interim work authorization. The right choice usually turns on where you are, how much you need to travel, and whether you are holding a nonimmigrant status in the meantime.

EB-2 — National Interest Waiver (NIW)

This is the best place to prepare for your initial consultation with our attorneys. Here, you can learn more about the requirements and considerations for obtaining a specific type of visa, as well as find answers to the most frequently asked general questions.

EB-2

Basics

EB-2 is the employment-based second-preference green-card category, for those who hold an advanced degree (or its equivalent) or who have exceptional ability. Normally EB-2 requires an employer and a PERM labor certification. A National Interest Waiver (NIW) asks USCIS to waive both the job-offer and labor-certification requirements because the applicant's work is in the national interest.

Answers to Frequently Asked Questions About This Visa Type

This list of questions will help you prepare for your consultation with an attorney

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