The EB-2 National Interest Waiver (NIW) is a category within the employment-based second preference (EB-2) green card classification. It allows individuals who possess exceptional abilities or advanced degrees to obtain a green card without the need for a job offer or labor certification, IF they can demonstrate that their work is in the national interest of the United States.
The NIW category is designed to attract foreign nationals who can significantly contribute to the country’s economy, cultural development, health, education, or welfare.
Based on my own professional experience with these cases, successful or promising fields of endeavor for an EB-2 NIW petition typically include:
- Science and Technology: Researchers, scientists, and technologists who are working on innovative or cutting-edge projects, especially in areas like biotechnology, artificial intelligence, renewable energy, or space technology, are often strong candidates.
- Healthcare and Medicine: Medical professionals, including doctors, researchers, and public health experts, especially those working on critical health issues like pandemic response, rare diseases, or innovative medical technologies.
- Engineering: Engineers involved in significant projects, like infrastructure development, environmental engineering, or advanced manufacturing, can qualify if their work has substantial merit and national importance.
- Business and Economics: Individuals who have a significant impact on economic growth, job creation, or business innovation, such as entrepreneurs, business leaders, or economic researchers.
- Education: Educators or academic researchers who are contributing significantly to their field, particularly in areas of high national interest like STEM education or literacy initiatives.
- Arts and Culture: Artists, performers, or cultural professionals who promote cultural exchange, preserve cultural heritage, or contribute significantly to the American arts scene.
- Environmental Conservation and Sustainability: Professionals working on critical environmental issues, such as climate change, conservation, sustainable development, or clean energy.
- Public Policy and Law: Individuals who influence public policy, law, or international relations, especially in areas crucial to American interests.
- National Defense and Security: Professionals contributing to national security or defense, including cybersecurity experts, military technology developers, or intelligence analysts.
The key to a successful EB-2 NIW petition is to demonstrate that the individual’s work has substantial merit and national importance, that they are well-positioned to advance their proposed endeavor, and that it would be beneficial to the United States to waive the job offer and labor certification requirements. It’s important to note that the specific criteria can be subject to interpretation and may evolve over time, so consulting with an immigration attorney for the most current guidance is advisable.
Here’s a comprehensive overview of the EB-2 National Interest Waiver category, including its uses and requirements:
- Eligibility Criteria:
a. Advanced Degree or Exceptional Ability: The applicant must have an advanced degree (such as a master’s degree or higher) or exceptional ability in the sciences, arts, or business. Exceptional ability is typically demonstrated through achievements and recognition in the field. b. National Interest: The applicant must demonstrate that their work has substantial merit and national importance. They should provide evidence of their ability to substantially benefit the United States, which may include economic, educational, cultural, health, or welfare contributions. - Labor Certification Waiver: Unlike other employment-based green card categories, the EB-2 NIW does not require a labor certification from the U.S. Department of Labor. This means that the applicant does not need to go through the time-consuming process of obtaining a job offer and proving that there are no qualified U.S. workers available for the position.
- Self-Petition: The applicant can self-petition for the EB-2 NIW category, which means they can file the petition on their own behalf without the need for an employer to sponsor them.
- Legal Standard: To be granted an NIW, the applicant must meet the legal standard set by the U.S. Citizenship and Immigration Services (USCIS) known as the “three-prong test”:
a. The work the applicant is engaged in has substantial merit and national importance.
b. The applicant is well-positioned to advance the proposed work due to their exceptional ability or advanced degree.
c. It would be beneficial to the United States to waive the job offer and labor certification requirements. - Supporting Evidence: The applicant must provide comprehensive evidence to demonstrate their eligibility for an NIW. This evidence may include but is not limited to:
a. Documentation of advanced degrees, diplomas, or licenses.
b. Letters of recommendation from experts in the field.
c. Evidence of significant contributions and achievements.
d. Published articles, patents, or other forms of recognition.
e. Documentation of media coverage or scholarly citations.
f. Evidence of prospective employment, contracts, or funding. - Advantages of NIW:
a. Self-Sponsorship: The ability to self-petition without an employer’s sponsorship offers more flexibility and control over the immigration process.
b. Expedited Processing: Certain NIW petitions are eligible for premium processing, resulting in faster adjudication.
c. Job Flexibility: Unlike other employment-based categories, the NIW does not tie the applicant to a specific job or employer, allowing for greater professional mobility.
The “3 prongs of Dhanasar” refer to the criteria established by the Matter of Dhanasar decision, which provides the framework for adjudicating EB-2 National Interest Waiver (NIW) petitions in the United States. To qualify for an EB-2 NIW under the Dhanasar precedent, an applicant must satisfy the following three prongs:
- Substantial Merit and National Importance:
- The proposed endeavor must have substantial merit and national importance. This means that the applicant’s work should be beneficial to the United States in a significant way. The impact can be in various fields such as business, entrepreneurship, science, technology, culture, health, or education.
2. Well-Positioned to Advance the Proposed Endeavor:
- The applicant must demonstrate that they are well-positioned to advance the proposed endeavor. This includes showing that the applicant has the necessary qualifications, experience, skills, knowledge, and a record of success or a plan to achieve their goals. The evidence can include past achievements, education, endorsements, and other relevant documentation that proves the applicant’s ability to succeed in their field.
3. On Balance, Beneficial to the United States to Waive the Job Offer and Labor Certification Requirements:
- The applicant must show that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. This prong requires a comparison of the applicant’s work and its national importance against the benefit of the labor certification process. The applicant must demonstrate that the benefits of their contributions to the United States outweigh the need to go through the traditional labor certification process designed to protect the U.S. labor market.
These criteria aim to ensure that individuals who receive an EB-2 NIW are those whose work is not only important and beneficial to the country but also those who are capable of making significant contributions in their field.
It’s important to note that the NIW is a complex legal process, and each case is unique. It is advisable to consult an experienced immigration attorney who can assess your specific situation, guide you through the process, and help gather the necessary evidence to present a compelling case for an EB-2 National Interest Waiver.
Revision Date: August 2024.