Individual who qualify as a member of the professions holding an advanced degree or as an individual of exceptional ability may self petition and request to waive the job offer requirement. NIW offers substantial benefits for a qualified individual. NIW beneficiary can submit the petition without a job offer. As a result, it offers job flexibility, and the individual is not tied to a sponsoring employer for years. The key element of NIW is justifying the waiver of the PERM labor certification process.

Requirements:

To qualify for NIW, an individual must initially qualify as an advanced degree professional or exceptional ability alien category:

  • Advanced degree professional possesses a master’s degree or higher or its foreign equivalent
  • Exceptional ability alien possesses a degree of expertise in the sciences, arts, or business significantly higher than ordinarily encountered

To qualify for NIW, individual petitioner must demonstrate qualification based on a three-prong test from Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). (Note: This AAO decision replaces the previous approach set in 1998 under Matter of New York State Dep’t of Trans. (NYSDOT), 22 I&N Dec. 215 (Acting AC 1998).

  • First, NIW petitioner must demonstrate that his or her national’s proposed endeavor has both substantial merit and national importance.
  • Second, NIW petitioner must demonstrate that he or she is well positioned to advance the proposed endeavor.
  • Third, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

USCIS adjudicates NIW in a case-by-case process. Therefore, NIW cases require an experienced attorney to carefully evaluate and analyze the strengths and weaknesses of each individual case and develop an individually tailored strategy that highlights the merits of each case. Our attorneys have the expertise and the experience to successfully guide you through the process.

Additional Resources:

  • An EB-2-NIW is an exciting path for foreign nationals with advanced degrees or exceptional abilities from many countries across the world to become a permanent resident (Green Card holder) of the United States without obtaining a job offer.
  • In an ordinary EB-2 petition, a petitioner is required to show s/he is a member of a profession with an advanced degree (a master’s degree or higher), or a bachelor’s degree plus 5 years of post-baccalaureate, progressive work experience in the field, or in the alternative, a petitioner must show s/he is a foreign national with exceptional ability in the areas of science, art, and business. In a regular EB-2 petition, in addition to the showing of an advanced degree or exceptional ability, the petitioner must usually secure a job offer and provide an approved Application for Permanent Employment Certification from the Department of Labor on ETA Form 9089 (PERM).

In contrast, an EB-2-NIW path allows an individual with an advanced degree or exceptional ability to petition to become a permanent resident (Green Card holder) of the United States without obtaining a job offer or labor certification (PERM and sponsoring employer) if the petitioner by providing the required evidence could demonstrate that this waiver is in the national interest of the United States.

  • Due to complications of securing a job offer, finding a sponsoring employer, and obtaining an approved certification from the Department of Labor, NIW is a tempting choice for millions of foreign nationals from across the world, who reside either in the U.S. or in a foreign country, to petition to become a permanent resident (Green Card holder) of the United States.

  • As discussed above, compared to an ordinary EB-2 petition, an EB-2-NIW petition relieves the petitioner from providing a job offer or labor certification.
  • In an EB-2-NIW petition, the beneficiary may self-petition to become a permanent resident of the U.S., and neither an employer nor the Department of Labor is needed to get involved in the process.
  • In an EB-2-NIW petition, in addition to meeting other requirements for an ordinary EB-2 petition, the petitioner must also satisfy the NIW requirement by showing that the waiver of the labor certification would be in the national interest of the United States.

  • You would be eligible to petition under EB-2-NIW classification if you have an advanced degree (master’s degree or above) or have a bachelor’s degree plus 5 years of post-baccalaureate, progressive work experience in the field, or in the alternative, you can demonstrate that you have exceptional ability in your field, and show that the waiver of a certified employment offer is in the national interest of the United States.

  • In other words, you would be eligible to petition to become a permanent resident of the U.S. if you satisfy only one of the following statements:

  1. you must be able to demonstrate that you have an advanced degree, and based on the NIW requirements, show that it would be in the national interest of the U.S. to forgo the employment certification requirement, or
  2. you are able to show that you have a bachelor’s degree plus 5 years of post-baccalaureate, progressive work experience in the field, and based on the NIW requirements, demonstrate that it would be in the national interest of the U.S. to forgo the employment certification requirement, or
  3. you must show that you have exceptional ability and, based on required NIW criteria, demonstrate that it would be in the national interest of the U.S. to forgo the employment certification requirement.

  • An advanced degree is a degree above a bachelor’s degree like a master’s degree or Ph.D. This may be shown by providing official academic records from an accredited U.S. school or can be demonstrated by presenting a foreign equivalent of such degree. Alternatively, a bachelor’s degree might be provided accompanying with the evidence of five consecutive post-baccalaureate work experience in the field of specialty.

How to demonstrate the exceptional ability (if you do not have an advanced degree)

  • Without an advanced degree, you still may be eligible as a foreign national with exceptional ability in the sciences, arts, or business to petition based on the EB-2-NIW category, if you meet at least three of the following requirements:

  1. “A degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability.” This can be shown by presenting official academic records from such organizations.
  2. “At least 10 years of full-time experience” in your proposed occupation. This can be shown by obtaining employment verification letters from former and current employers.
  3. “A license to practice your profession or certification for a particular profession or occupation.”
  4. Commanding “a salary, or other remuneration for services, which demonstrates the exceptional ability.
  5. Membership in professional associations.
  6. “Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.”

  • Our attorneys at Meng Law Group carefully evaluate and analyze the strengths and weaknesses of the documents and develop an individually tailored strategy that highlights the merits of your case and your eligibility based on your exceptional ability in the sciences, arts, or business to petition based on EB-2-NIW category

  • NYSDOT had been the controlling case since 1998, however, in 2016, the Court in Dhanasar vacated NYSDOT’s precedent decision and introduced a new framework for evaluating NIW petitions.

  • Under the old standard (NYSDOT 1998), the petitioner was required to show that:

(1) the foreign national seeks employment in an area of substantial intrinsic merits,

(2) the proposed benefit will be national in scope, and

(3) the national interest would be adversely affected if a labor certification were required.

  • In contrast, under the new standard set forth in Matter of Dhanasar (2016), the petitioner must show that:

(1) the foreign national’s proposed endeavor has both substantial merit and national importance,

(2) the foreign national is well-positioned to advance the proposed endeavor, and

(3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. 26 I&N Dec. 884 (AAO 2016), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998).

  • Under the new standard of eligibility for a National Interest Waiver (NIW), you must satisfy all of the four following requirements: (Matter of Dhanasar).

  1. You must show that your proposed endeavor has both substantial merit and national importance;
  2. You must show that you are well-positioned to advance the proposed endeavor; and
  3. You must show that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

  • Our attorneys at Meng Law Group carefully evaluate and analyze the strengths and weaknesses of your documents and develop an individually tailored strategy that highlights the merits of your NIW eligibility based on the new standard of eligibility.

  • Under Matter of Dhanasar, a petitioner seeking a national interest waiver must demonstrate that his or her proposed endeavor has substantial merit and national importance.
  • The petitioner may demonstrate the endeavor’s merit in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. Id.
  • The national interest waiver test under Dhanasar shifts the focus of the benefits to be conferred from national in scope to national importance. Id. Thus, USCIS may broadly consider a foreign national’s potential prospective impact based on its national implications within a particular field rather than focusing solely on geographic terms. Id. Even ventures and undertakings that focus on one geographic area may be considered to have national importance. Additionally, an endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects may have national importance. Id.
  • Under Matter of Dhanasar, “to determine whether [a Petitioner] is well-positioned to advance the proposed endeavor, we consider factors including, but not limited to: the individual’s 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.”
  • Also, under Matter of Dhanasar, establishing the likelihood of success is not a requirement, and it is recognized that “forecasting feasibility or future success may present challenges to petitioners and USCIS officers, and that many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution.” Therefore, USCIS does not “require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed.”
  • Under Dhanasar’s decision, an NIW petition must demonstrate that it would be beneficial to the United States to waive the requirements of a job offer and labor certification. USCIS may grant a national interest waiver when national interest factors outweigh the benefits inherent in the labor certification process. Id. USCIS may evaluate factors such as whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. Id. For example, it may be impractical for an entrepreneur or self-employed inventor to secure a job offer from a U.S. employer when advancing an endeavor on his or her own. Id. Additionally, even assuming that other qualified U.S. workers are available, USCIS may grant a national interest waiver if a petitioner offers contributions of such value that, on balance, they would benefit the U.S. Id.
  • foreign nationals from many countries around the world, whether living in the U.S. or outside the U.S., may be eligible for EB-2-NIW classification. We, at Meng Law Group, have already assisted many clients from outside the U.S. as well as many others inside the U.S.
  • Specifically, EB-2-NIW is a tempting path for those outside the U.S., because it allows them to petition to become a permanent resident of the U.S. (obtain a Green Card) without going through the difficulties of obtaining a job offer from a U.S. employer.
  • There are some procedural differences between applying from inside the U.S. with a valid status and applying from outside of the U.S. A petitioner who resides outside the U.S., after approval of his/her EB-2-NIW petition must obtain an immigrant visa through a U.S. consulate in a foreign country to be able to enter the United States. In contrast, petitioners who reside in the U.S. in valid status, after filing an EB-2-NIW petition, may apply for an adjustment of status to become a U.S. permanent resident after approval of, or concurrently with their EB-2-NIW petition.
  • To file an EB-2-NIW petition, you must prepare Form I-140 (Immigrant Petition for Alien Workers), and submit the form with your NIW petition letter, recommendation letter(s), and all other required evidence to show your eligibility.
  • There are some procedural differences between petitioning from inside the U.S. with a valid status and petitioning from outside of the U.S. A petitioner who resides outside the U.S., after approval of his/her EB-2-NIW petition must obtain an immigrant visa through a U.S. consulate in a foreign country to be able to enter the United States; and petitioners who reside in the U.S. on a valid status, after filing an EB-2-NIW petition, may apply for an adjustment of status to become a U.S. permanent resident after approval of their EB-2-NIW petition. Typically, this is an easier process for petitioners who reside in the U.S. with a valid visa status because they had already gone through several steps of the admissibility process through a U.S. consulate in a foreign country before they entered the U.S.
  • Concurrent filing (petitioning for EB-2-NIW through Form I-140 and applying for the Adjustment of Status with Form I-485) is not available for petitioners who apply from outside the U.S. through consular processing.
  • Our team at Meng Law Group carefully evaluate and analyze the strengths and weaknesses of your documents and develop an individually tailored strategy that highlights the merits of your NIW eligibility and assist you with all the steps involved in filing an EB-2-NIW petition.

  • To prove your eligibility for a National Interest Waiver under EB-2-NIW you must provide evidence to support your allegations under the NIW petition letter. These documents may include some of the following or any other comparable evidence:

  1. Recommendation letters;
  2. Publications: publications may include journal articles, conference papers, and any other forms of publications in newspapers, media channels, etc;
  3. Record of citations to your publications: this can be shown by various kinds of evidence like google scholar citation page, number of downloads, and other comparable evidence;
  4. Presentations and invited talks. This may include conference presentations, talks at industry and academic events, and more;
  5. Awards, honors, grants: this may include awards and honors received from various organizations in your field of endeavor;
  6. Service as a judge or reviewer: this might be records of your pee-review activities for journals and conferences;
  7. Membership in organizations in your field of endeavor if the membership require specific qualifications for the members;
  8. Record of success in your field: this may include projects, commercial success, and more;
  9. Recognition in the field: this may include recognition by experts as evidenced by your recommendation letters;
  10. Recognition for your achievements or your contributions to the field;
  11. Evidence of your professional experience in the field;
  12. Media reports about you and your work;
  13. Academic records;
  14. A license to practice or certification
  15. Commanding a salary (to show exceptional ability in the absence of an advanced degree);
  16. Record of employment and employment verification letters; and
  17. Any other comparable evidence to establish your eligibility.

  • Our team at Meng Law Group assist you with the process of evidence collection and the types of documents to be collected, and carefully evaluate and analyze the strengths and weaknesses of your documents and develop an individually tailored strategy that highlights the merits of your NIW eligibility and assist you with all the steps involved in the filing of an EB-2-NIW petition from collecting the required documents to the final approval and entry to the U.S.

  • Unlike EB-2-NIW that requires an advanced degree or exceptional ability, in an EB-1A petition, foreign nationals must have extraordinary ability and belong to a small group of top professionals in their field to petition to become a permanent resident of the United States. Similar to EB-2-NIW petitions, EB1-A petitioners also do not need to provide a job offer or labor certification and they may self-petition.
  • Generally, compared to an EB-2-NIW petition, EB-1A petitions are held to a higher standard of eligibility and therefore, they might be more difficult to get approved. As discussed above, EB-1A petitioners need to show that they have extraordinary ability, and they belong to the top percentile of professionals in their field. To show extraordinary ability, an EB-1A petitioner must provide evidence of one time internationally recognized award such as an Oscar award, or must meet three of the required 10 criteria for this category. Additionally, EB-1A petitioners must also demonstrate that they belong to a small group of individuals who have risen to the top of their field of endeavor.
  • There might be some specific circumstances that the petitioner has exceptional and extraordinary ability, however, it is not easy to meet some of the requirements of a National Interest Waiver (NIW). So, in these specific situations, regardless of the lower eligibility requirements of EB-2-NIW petitioners, we may still consider EB-1A as a promising path.
  • Although EB-1A petitions are harder to get approved, typically, they have shorter waiting times. Although the processing time varies country by country, generally, EB-1A petitions are processed faster than EB-2-NIW petitions. Nonetheless, the best reference for processing times is to check your priority date on the Visa Bulletin (regularly published by the Department of State) to see whether it has become current.
  • Premium Processing Service is not yet available for EB2 petitions. Currently, EB-1 petitions can benefit from expedited processing time by paying an additional fee for Premium Processing Service, however, such services are not yet available for EB-2 petitions.

  • To find the most up to date USCIS filing and processing fees regarding I-140 (Immigrant Petition for Alien Worker) and, if requested, I-485 (Adjustment of Status), you may refer to the following page: https://www.uscis.gov/archive/our-fees

  • For legal fees, please contact Meng Law Group PC.

  • USCIS adjudicates NIW in a case-by-case process. Therefore, NIW cases require an experienced attorney to carefully evaluate and analyze the strengths and weaknesses of each case and develop an individually tailored strategy that highlights the merits of each case. Our attorneys have represented many clients with a wide range of backgrounds in the fields of technology, science, business, art, and more, and they have the expertise and the experience to successfully guide you through the process.

No communication herein shall create an attorney-client relationship, unless a separate retainer agreement is signed by both the Attorney and the Client. The information contained in this Web site is general in nature and subject to change at any point in time. As such, it may not necessarily apply to all situations. Therefore, under no circumstance should it be construed as legal advice. Please ensure that you consult with an attorney regarding your specific situation before starting a legal process.