Step-by-Step Guide To The EB2 National Interest Waiver (NIW)
16 October 2024Author: US Eb2 National Interest Waiver Attorney Alena Shautsova
The EB2 National Interest Waiver (NIW) visa offers an attractive pathway for highly skilled professionals who wish to live and work in the United States. Unlike traditional employment-based visas, the NIW allows you to bypass the cumbersome labor certification process. This article explains the qualifications for an EB2 NIW, provides a step-by-step guide to applying, and offers advice on responding to a potential Request for Evidence (RFE) from USCIS.
Qualifications for the EB2 National Interest Waiver
The EB2 NIW is designed for individuals whose work benefits the United States. To qualify, you must meet the basic criteria for the EB2 category and also show that waiving the job offer requirement would be in the "national interest." Here’s what you need to demonstrate:
1. **Advanced Degree or Exceptional Ability:
- You must either have an advanced degree (master’s or higher) or possess exceptional ability in your field. This can be in areas like science, arts, or business.
- Advanced Degree Requirement: To qualify based on an advanced degree, you must have at least a U.S. master's degree or its foreign equivalent. Alternatively, you can qualify with a U.S. bachelor's degree (or its foreign equivalent) plus at least five years of progressive experience in the specialty field. Progressive experience means that your work responsibilities and skill level have increased over time, showing professional growth.
- Evidence for Advanced Degree: To meet the advanced degree requirement, you will need to provide documentation such as:
- Degree Certificates: Official transcripts and diploma copies to prove your educational background.
- Work Experience Letters: If you are using a bachelor’s degree plus five years of experience, you need detailed letters from former employers outlining your roles and demonstrating your growth in the field.
Please note that in the US there are services that may translate or “re-count” your foreign credits/diploma(s) to determine if you have an equivalent of a US degree.
2. **Substantial Merit and National Importance**:
- Your proposed endeavor must have substantial merit. This means your work must provide tangible benefits to the U.S. in fields such as healthcare, technology, education, or economic development.
3. **Well-Positioned to Advance the Proposed Endeavor**:
- You need to demonstrate that you are well-positioned to advance your proposed work. This includes having a solid track record of accomplishments, relevant experience, and the ability to continue making impactful contributions.
Examples from Administrative Appeals Office (AAO) decisions of individuals who are considered well-positioned to advance national interests in an EB-2 National Interest Waiver (NIW) case often include:
- Research Scientists: Individuals engaged in groundbreaking research that contributes to significant scientific advancements or fills critical gaps in knowledge, particularly in fields like healthcare or environmental science. AAO has recognized scientists whose work addresses national concerns, such as infectious diseases, as well-positioned to advance national interests due to the potential societal impact.
- Healthcare Professionals: Professionals contributing to healthcare solutions, especially those working in underserved communities or on public health initiatives. These applicants are often considered well-positioned because their work directly addresses pressing public health needs.
- Entrepreneurs in Emerging Technologies: Applicants who lead companies in emerging technologies, like renewable energy or biotechnology, are considered well-positioned when their projects have significant economic or environmental benefits. The AAO often considers entrepreneurs whose projects provide job opportunities or contribute to sustainable practices as crucial to national interests.
These examples demonstrate that individuals who can prove a direct and positive impact on issues of national importance—be it in public health, scientific research, or economic development—are typically seen as well-positioned to advance the national interest.
4. **National Interest Balancing Test**:
- You must prove that waiving the labor certification requirement would be beneficial for the United States. Essentially, your work must have such a positive impact that the U.S. would benefit from your direct admission, without needing an employer to sponsor you.
Step-by-Step Process to Apply for the EB2 NIW
1. **Prepare Form I-140 (Immigrant Petition for Alien Worker)**:
- The I-140 form is the key application to start the EB2 NIW process. In this form, you explain why your work meets the national interest criteria. Do not forget that with the recent changes, you will have to correctly answer certain questions on the form I 140 for it to be accepted. Specifically, questions about the size of the employer related to the Asylum Program Fee which must be paid by all applicants (unless exempt).
2. **Compile Supporting Documentation**:
- Gather documents that prove you meet all the qualifications:
- **Educational credentials** showing an advanced degree.
- **Evidence of exceptional ability** such as awards, publications, media coverage, and letters of recommendation.
- **Detailed Plan or Proposal** outlining the substantial merit and impact of your proposed endeavor.
- **Letters of Recommendation** from experts in your field who can validate your contributions and your potential to benefit the U.S.
3. **Submit the Application to USCIS**:
- File the completed I-140 form and supporting documents to the United States Citizenship and Immigration Services (USCIS). Note that you must also submit a draft of PERM certification application. While it is a formality, as if the I 140 EB2 NIW is granted, the PERM requirement is waived, nevertheless it has to be submitted to USCIS.
4. **Wait for USCIS Processing**:
- The processing time can vary. Premium processing is available for EB2 NIW.
Responding to a Request for Evidence (RFE)
Sometimes, USCIS may issue a Request for Evidence (RFE) if they need more information before deciding on your case. A typical Request for Evidence (RFE) for an EB2 National Interest Waiver (NIW) case is issued when USCIS requires additional information to make a final decision on the application. Here are common types of RFEs for EB2 NIW:
- Evidence of National Importance: USCIS may request more documentation to prove that the applicant's proposed endeavor is of substantial merit and national importance. This often involves providing evidence of the societal, economic, or cultural significance of the work[5].
- Well-Positioned to Advance the Endeavor: USCIS might issue an RFE if they need additional proof that the applicant is well-positioned to carry out the proposed work. This can include more detailed records of past accomplishments, endorsements from recognized experts, or proof of experience in the field
Here’s how to handle it:
1. **Carefully Read the RFE**:
- Start by thoroughly reading the RFE to understand exactly what USCIS is requesting. Make a copy of the notice and highlight key points.
2. **Gather the Required Evidence**:
- Collect all documents that USCIS has requested. This may include additional proof of your qualifications, a more detailed project description, or extra letters of recommendation.
3. **Organize the Response**:
- Make sure your response is well-organized, clear, and addresses each point raised in the RFE. Include a cover letter summarizing your evidence and how it meets the requirements.
4. **Submit Within the Deadline**:
- Ensure that you submit the response before the deadline mentioned in the RFE. Late submissions may result in denial.
Final Tips for EB2 NIW Applicants
- **Seek Expert Legal Advice**: Navigating the EB2 NIW process can be complex. Hiring an immigration attorney can significantly increase your chances of success.
- **Highlight National Impact**: Your application must convincingly argue why waiving the job offer and labor certification requirements benefits the United States.
- **Prepare for RFEs**: Be prepared for an RFE as they are common in NIW cases. Ensure your initial filing is thorough to reduce the likelihood of an RFE.
Conclusion
The EB2 National Interest Waiver is an excellent option for professionals who want to bring their talents to the United States without needing employer sponsorship. By carefully preparing the necessary documentation and responding to any RFEs effectively, you can maximize your chances of obtaining an NIW approval. Remember that a strong application not only meets all qualifications but also clearly demonstrates your ability to make significant contributions to the national interest.
For anyone considering the EB2 NIW, understanding the requirements and having a detailed plan is key. If you’re ready to take the next step, consider consulting with an experienced immigration attorney to help you present the strongest case possible.
If you are considering submitting your EB2 National Interest Waiver petition, call us for help at 917 885 2261.