The benefits of filing an EB-2 National Interest Waiver (NIW) as a self-petition

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Perhaps you’ve just graduated from university and have begun working pursuant to your F-1 OPT work authorization, you’ve just secured an H-1B visa, or you’ve just entered the United States in L-1 status, and you have no idea how to get your green card process started. Alternatively, it might be that you’re eager to get your green card process started but your employer is hesitant, or your employer is struggling with their PERM program, or even worse—the employer’s PERM program was shut down by the Department of Labor due to your employer’s mismanagement. You may be in a situation where PERM is off the table or PERM is taking too long (current delays amount to a 2+ year wait time) and based on your qualifications, the EB-1 pathway is out of reach until you have a couple more years of experience, but you’re running out of time on your nonimmigrant visa status.

It may be that your employer is now thinking of pursuing an EB-2 National Interest Waiver for you, which sounds great. Securing an EB-2 National Interest Waiver could streamline the first steps in your employment based green card process and provide much needed protection.

It is important to know that if your employer begins the EB-2 National Interest Waiver process for you, and lists themselves as the petitioner, the EB-2 National Interest Waiver, if approved, will be tied to this employer. This means that if your employer lays you off, you would need to go through the whole process again with a new employer. In the current economy, many foreign nationals are feeling this pressure and would gladly rid themselves of the restraints many employers place on their employees when it comes to immigration benefits.

You have another option. By filing the EB-2 National Interest Waiver as a self-petition, either through your employer or on your own, securing an approval, you can take that approval notice with you anywhere as long as you continue to pursue your endeavor in the national interest. When your priority date finally becomes current you can apply for adjustment of status without a bona fide job offer thus streamlining your green card process and ridding yourself of the onerous process of renewing your nonimmigrant visa status.

So, how does one begin this process? For starters, a basic understanding of the EB-2 Advanced Degree category is needed. There are two categories of EB-2 immigrant based visas, based on two sub-categories of requirements: Advanced Degree and Exceptional Ability.

EB-2 Advanced Degree Sub-Category

The EB-2 Advanced Degree sub-category is for those who have obtained an Advanced Degree, meaning you must have secured a U.S. Master’s degree or its foreign equivalent. In the alternative, if you have obtained a Bachelor’s degree, you can still satisfy this requirement by showing that you have 5 years of progressive experience in your field of expertise.

If you have a PhD in a STEM field, there are specific evidentiary considerations for your petition which may benefit you. To learn more about this, please reach out to us here and one of our attorneys will be in touch.

EB-2 Exceptional Ability Sub-Category

If you have neither an Advanced Degree nor a Bachelor’s degree with 5 years of progressive experience in the field, you must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability is defined as “a degree of expertise significantly above that ordinarily encountered” in your field. You must satisfy at least three of the “Exceptional Ability” requirements, which are outlined as follows:

  • 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 from current or former employers 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)

  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations

  • Other comparable evidence of eligibility is also acceptable

National Interest Waiver

The next step after establishing the advanced degree requirement is the waiver of the labor certification process, otherwise known as the national interest waiver. You must show that your proposed endeavor in the United States is in the national interest. USCIS weighs the following three factors in determining whether one’s endeavor is in the national interest and would thus warrant a waiver of the labor certification process:

  • The proposed endeavor has both substantial merit and national importance.

  • You are well positioned to advance the proposed endeavor.

  • On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

How do I determine whether I qualify for the EB-2 NIW category?

This can be determined by having our firm review your credentials. For an evaluation of your potential case, please reach out to us here and one of our attorneys will be in touch.