To qualify for the EB-2 NIW visa, applicants must demonstrate that they meet the following requirements:

  • Exceptional Ability: Applicants must possess exceptional ability in their field of expertise, which can be demonstrated through an advanced degree, evidence of at least 10 years of progressive experience, or other comparable evidence.
  • National Interest: The applicant’s proposed endeavor or employment must be in the national interest of the United States. This means that the applicant’s work or contributions must have a significant positive impact on areas such as healthcare, education, scientific research, or economic development.
  • Well-Positioned to Advance the Endeavor: The applicant must provide evidence that they are well-positioned to successfully carry out their proposed endeavor or employment, considering factors such as their education, skills, experience, and past achievements.

The primary benefit of the EB-2 NIW visa is that it allows foreign nationals to bypass the labor certification process, which is typically required for other employment-based green card categories. Labor certification is a time-consuming and complex process that requires employers to demonstrate that there are no qualified U.S. workers available for the position.

By obtaining the EB-2 NIW visa, applicants can self-petition for a green card without the need for an employer sponsor or labor certification. This can provide greater flexibility and independence for individuals seeking permanent residence in the United States based on their exceptional abilities and potential contributions to the national interest. 

Documenting Eligibility for EB-2 Classification

To qualify for the EB-2 classification, you must possess either an advanced degree, the equivalent of an advanced degree (a bachelor’s degree plus five years of progressive experience), or demonstrate exceptional ability in your field.

Advanced Degree Requirements

If you hold a U.S. advanced degree, such as a master’s or doctoral degree, you should submit a copy of your diploma and official transcripts. This serves as evidence of your educational qualifications. 

Foreign Degree Equivalency

If your degree was obtained from a foreign institution, you will need to provide a degree equivalency evaluation. This evaluation should be conducted using the EDGE (Electronic Database for Global Education) database, which is a widely accepted resource for determining the U.S. equivalency of foreign degrees.  The degree equivalency evaluation report demonstrates that your education meets the EB-2 degree requirement.

Exceptional Ability Criteria

If you do not possess an advanced degree or its equivalent, you may still qualify for the EB-2 classification by demonstrating exceptional ability in your field. To establish exceptional ability, you must provide proof at least three of the following:

  • Academic Record: Official documentation showing a degree, diploma, certificate, or similar award from an accredited institution related to your field of exceptional ability.
  • Employment Experience: Letters from current or former employers documenting at least 10 years of full-time experience in your occupation or field.
  • Professional License or Certification: A valid license or certification to practice your profession or occupation.
  • Salary or Remuneration: Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability.
  • Professional Association Membership: Membership in professional associations relevant to your field.
  • Recognition of Achievements: Documentation of recognition for your significant contributions or achievements in your industry or field by peers, government entities, or professional organizations.
  • Other Comparable Evidence: Any other comparable evidence that establishes your eligibility based on exceptional ability.

Providing the required documentation for either an advanced degree, its equivalent, or exceptional ability is crucial for demonstrating your eligibility for the EB-2 classification under the EB-2 NIW visa category.

person carry information from passport to usa visa application form.

Describing Your Endeavor

Providing a detailed description of your proposed endeavor is a crucial aspect of the EB-2 NIW petition. This involves going beyond merely stating your general job duties or occupation. Instead, you need to elaborate on the specific activities, projects, and plans you intend to undertake, as well as identify your potential employers, clients, customers, or partners. 

The description of your endeavor should be comprehensive and paint a clear picture of your intended work. It should outline the steps you plan to take, the goals you aim to achieve, and the potential impact or significance of your endeavor.

There are two primary ways to present this information: through a personal statement or a business plan.

Personal Statement

A personal statement is a written narrative that outlines your background, qualifications, and the details of your proposed endeavor. It should provide an in-depth explanation of your plans, the significance of your work, and how it aligns with the national interest of the United States.

In your personal statement, you should address the following:

  • A detailed description of your proposed activities or projects
  • The goals and objectives you aim to achieve
  • The potential impact or significance of your work
  • Your expertise, qualifications, and experience relevant to the endeavor
  • Any progress or achievements you have already made towards your endeavor
  • How your endeavor relates to the national interest of the United States

Business Plan

If your endeavor is entrepreneurial or involves starting a business, it is recommended to submit a comprehensive business plan. A well-crafted business plan should provide a detailed roadmap for your proposed venture, including financial projections, market analysis, and operational strategies.

Your business plan should cover the following aspects:

  • Executive summary
  • Description of the business and its products or services
  • Market analysis and industry overview
  • Marketing and sales strategies
  • Operational plan
  • Management team and organizational structure
  • Financial projections and funding requirements

A business plan not only demonstrates the viability and potential of your endeavor but also showcases your preparedness and commitment to its successful execution.

Regardless of whether you choose to submit a personal statement or a business plan, the key is to provide a comprehensive and compelling description of your proposed endeavor, highlighting its significance, your qualifications, and how it aligns with the national interest of the United States.

Proving Merit and National Importance

To prove that your endeavor has merit and national importance, you can submit various types of evidence such as reports, studies, articles, and expert testimonial letters. It’s crucial to ensure that any evidence you provide comes from legitimate and reputable sources. 

Reports and studies from government agencies, research institutions, or industry associations can be powerful evidence to demonstrate the significance and potential impact of your endeavor. These sources carry credibility and can highlight how your work aligns with national priorities or addresses critical issues. 

Peer-reviewed academic articles or publications in respected journals can also support the merit and importance of your endeavor. Look for articles that cite your endeavor, analyze its implications, or discuss its potential applications and contributions to the field.

Expert testimonial letters from recognized authorities in your field can be invaluable. These letters should come from individuals with relevant expertise and should provide specific examples and analysis of how your endeavor is meritorious and of national importance. The letters should highlight the unique contributions, innovations, or advancements that your work brings to the field.

Additionally, you can submit articles or media reports from reputable sources that discuss your achievements, innovations, or the potential impact of your work. These can help demonstrate the recognition and significance of your endeavor within the industry or broader community.

It’s important to carefully curate and present the evidence, ensuring that it is properly cited and comes from credible sources. The evidence should paint a clear picture of how your endeavor is meritorious, innovative, and aligned with national interests or priorities.

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Demonstrating You Are Well-Positioned

To demonstrate that you are well-positioned to advance your proposed endeavor, you need to provide evidence of your education, skills, knowledge, and record of success in related or similar efforts. This can include degrees, certificates, licenses, patents, trademarks, or copyrights you have developed in your field.

Additionally, you can submit any published articles, media reports, or documentation demonstrating a strong citation history of your work, as well as evidence that your work has influenced your field of endeavor. Letters from experts in your field describing your past achievements and how you are well-positioned to advance your endeavor can also be valuable.

Progress towards achieving your proposed endeavor is another important factor. This can be demonstrated through a detailed plan describing how you intend to continue your work in the United States, a comprehensive business plan or project description, and any relevant supporting evidence.

Potential support from prospective employers, clients, customers, or investors can further strengthen your case. This can include correspondence, contracts, agreements, or licenses showing the potential impact of your endeavor, as well as evidence of investment from U.S. investors or non-monetary support from government entities or economic development organizations.

Finally, evidence demonstrating how your work is being used by others, such as contracts with companies using your products or technologies, or patents or licenses for your innovations, can help reinforce that you are well-positioned to advance your endeavor in the United States.

Beneficial to the United States

The EB-2 NIW visa requires demonstrating that your admission to the United States would be beneficial on balance. This involves providing evidence related to factors such as: 

Impracticality of Labor Certification

In certain cases, the labor certification process may be impractical or inadequate to capture the unique qualifications and contributions of an individual. For example, if the nature of your endeavor requires highly specialized knowledge or skills that exceed the minimum requirements for the occupation, the labor certification process may not be suitable.

U.S. Competitiveness in STEM Fields

If your work involves cutting-edge research or advancements in science, technology, engineering, or mathematics (STEM) fields, it could contribute to maintaining or enhancing the United States’ competitiveness in these critical areas. Evidence demonstrating the potential impact of your contributions on U.S. competitiveness in STEM fields can support the national interest argument.

Revenue Generation and Economic Revitalization

Endeavors with the potential to generate significant revenue or drive economic revitalization can be considered beneficial to the United States. This could include entrepreneurial ventures, innovative products or services, or projects that attract investment and create jobs.

Job Creation

Evidence that your endeavor has the potential to create employment opportunities for U.S. workers can strongly support the national interest argument. This could involve business plans, projections, or documentation demonstrating the anticipated job creation impact of your work.

In demonstrating the beneficial nature of your admission to the United States, it is crucial to provide specific, well-documented evidence tailored to your unique circumstances and endeavor. Consulting with an experienced immigration attorney can help ensure that you present the strongest possible case.

Supporting Evidence Checklist

When compiling your EB-2 NIW petition, it’s crucial to provide substantial evidence demonstrating your qualifications and the potential impact of your endeavor. Here’s a checklist of supporting documents you may want to include:

Degrees, Certificates, and Licenses

  • Copies of your academic degrees, diplomas, certificates, or similar credentials related to your field of expertise
  • Professional licenses or certifications relevant to your endeavor

Patents, Trademarks, and Copyrights

  • Issued patents, registered trademarks, or copyrights that you have developed or co-developed
  • Documentation highlighting the significance and impact of your intellectual property

Published Works and Citations

  • Copies of articles, research papers, books, or other published materials authored or co-authored by you
  • Evidence of your work’s citation history, demonstrating its influence within your field

Business Contracts and Agreements

  • Copies of contracts, agreements, or licenses related to your endeavor, showcasing its potential impact
  • Documentation of partnerships or collaborations with companies, organizations, or institutions

Investment and Financial Support

  • Evidence of investment received from U.S. investors, such as venture capital firms, angel investors, or start-up accelerators
  • Documentation of grants, awards, or other forms of financial support from government entities or non-profit organizations

Letters of Support

  • Letters from experts in your field, describing your achievements and endorsing your ability to advance your endeavor
  • Letters from potential employers, clients, customers, or partners expressing interest in your work
  • Letters from government agencies or quasi-governmental entities supporting your endeavor’s potential impact

Remember, the supporting evidence you provide should be tailored to your specific endeavor and should demonstrate your expertise, the merit and national importance of your work, and your ability to successfully advance your proposed endeavor in the United States.

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The Role of an Immigration Attorney

Navigating the complexities of the EB-2 National Interest Waiver (NIW) process can be daunting, which is why working with an experienced immigration attorney is crucial for success. An attorney who specializes in NIW cases can provide invaluable guidance and support throughout the entire process.

One of the primary roles of an NIW attorney is to develop a comprehensive case strategy. They will carefully evaluate your background, qualifications, and proposed endeavor to determine the best approach for presenting a compelling case. This includes identifying the most relevant evidence to demonstrate your eligibility and the potential impact of your work on the national interest of the United States.

Document preparation is another critical aspect where an experienced attorney can make a significant difference. They will ensure that all required documentation is properly organized, formatted, and presented in a manner that effectively communicates your qualifications and the merits of your case. This includes drafting persuasive legal briefs, personal statements, and soliciting expert testimonials that highlight the importance of your work.

Moreover, an NIW attorney will provide guidance on addressing any potential weaknesses or shortcomings in your case, offering strategies to mitigate or overcome them. Their in-depth knowledge of immigration laws, regulations, and precedents can help anticipate and address potential issues before they arise, increasing the chances of a successful outcome.

Throughout the process, your attorney will serve as your advocate, representing your interests and communicating with immigration authorities on your behalf. They will handle all correspondence, respond to requests for additional information, and ensure that your case is presented in the most favorable light possible.

Ultimately, working with an experienced NIW attorney can significantly increase your chances of approval, saving you time, effort, and potential setbacks. Their expertise, attention to detail, and commitment to your case can make a substantial difference in realizing your immigration goals.

EB-2 NIW Approval Statistics

The EB-2 NIW visa has seen a steady rise in approval rates over the past decade. According to data from USCIS, the approval rate for EB-2 NIW petitions was around 35% in 2010. However, this rate has steadily climbed, reaching over 50% in recent years.

Processing times for EB-2 NIW petitions can vary significantly, with some cases being adjudicated within 6 months, while others may take over a year. The current average processing time is around 10-12 months, though this can fluctuate based on USCIS workload and staffing levels.

In terms of top approved fields, the EB-2 NIW has seen a diverse range of occupations and industries represented. However, some of the most common fields include:

  • STEM (Science, Technology, Engineering, Mathematics) disciplines
  • Medical and healthcare professions
  • Academic and research positions
  • Business and entrepreneurial endeavors
  • Arts and cultural fields

Within STEM, fields such as computer science, engineering, biotechnology, and data science have seen particularly high approval rates. The medical field has also been well-represented, with physicians, researchers, and other healthcare professionals frequently securing EB-2 NIW approvals. 

It’s important to note that approval rates and processing times can vary based on individual circumstances and the strength of the evidence presented in the petition. Working with an experienced immigration attorney can significantly increase the chances of a successful EB-2 NIW petition. 

EB-2 NIW vs Other Employment Visas

The EB-2 National Interest Waiver (NIW) is a unique and advantageous employment-based green card option that offers several benefits compared to other visa categories. Here’s how the EB-2 NIW compares to some of the most common employment visas:

EB-1 Extraordinary Ability or Outstanding Researcher/Professor

The EB-1 visa is often considered the most prestigious employment-based green card category, but it has stringent eligibility criteria. The EB-2 NIW, while still requiring a high level of achievement, has a lower bar for qualification. Additionally, the EB-2 NIW does not require an employer sponsor or a permanent job offer, making it a more flexible option for entrepreneurs, self-employed individuals, and those seeking greater career mobility.

EB-2 Labor Certification

The traditional EB-2 visa requires a job offer and an approved labor certification, which can be a lengthy and complex process. The NIW bypasses the labor certification requirement, making it a faster and more streamlined path to a green card for those who can demonstrate their work is in the national interest of the United States.

EB-5 Investor Visa

The EB-5 investor visa requires a substantial investment of at least $800,000 in a commercial enterprise that creates or preserves at least 10 full-time jobs for U.S. workers. The EB-2 NIW, on the other hand, does not require a significant financial investment, making it a more accessible option for individuals without substantial capital.

H-1B Specialty Occupation Visa

The H-1B is a temporary non-immigrant visa for specialty occupations, often used as a stepping stone to an employment-based green card. However, the H-1B has strict annual caps and is subject to lottery selection, making it a less reliable option. The EB-2 NIW offers a direct path to a green card without the need for an employer sponsor or the uncertainty of the H-1B lottery.

Other Temporary Work Visas (TN, E-3, H-1B1, etc.)

While there are various temporary work visa options available, they all share the limitation of being non-immigrant visas with expiration dates and restrictions on permanent residency. The EB-2 NIW provides a direct path to a green card and permanent residency in the United States, offering greater stability and freedom compared to temporary work visas.

Overall, the EB-2 National Interest Waiver is a unique and valuable option for highly skilled individuals seeking a green card without the constraints of traditional employment-based visa categories. Its flexibility, lack of employer sponsorship requirement, and potential for faster processing make it an attractive choice for those who can demonstrate their work is in the national interest of the United States.

Visa to United States of America, multiple exposure with national flag of USA

Immigrant Visa Availability

Immigrant visa availability is a crucial factor in the EB-2 NIW process. The availability of immigrant visas is determined by the Department of State’s Visa Bulletin, which is updated monthly. The Visa Bulletin provides cut-off dates for each visa category and country of chargeability.

Retrogression is a term used when the cut-off dates in the Visa Bulletin move backward, making it more difficult for individuals to obtain an immigrant visa. Retrogression can occur due to high demand and limited visa availability for certain categories or countries.

Country chargeability refers to the country of birth, not the country of citizenship or residence. This means that applicants are subject to the cut-off dates for their country of birth, even if they hold citizenship or reside in a different country.

It’s essential to monitor the Visa Bulletin regularly, as visa availability can change from month to month. Applicants whose priority dates are not current may need to wait until their cut-off date becomes current before they can proceed with the final stages of the EB-2 NIW process.

After EB-2 NIW Approval

Once your EB-2 NIW petition is approved, you will receive your immigrant visa packet if you are outside the United States or be eligible to apply for adjustment of status if you are already in the U.S. in a valid nonimmigrant status.

If you are outside the U.S., you will go through consular processing to receive your immigrant visa at a U.S. embassy or consulate. After entering the U.S. with your immigrant visa, you will receive your permanent resident card (green card).

If you are in the U.S., you can file Form I-485 to adjust your status to permanent resident. Your EB-2 NIW approval notice will allow you to obtain an Employment Authorization Document (EAD) and advance parole while your I-485 is pending.

Once you receive your permanent resident status, you can seek employment freely without being tied to a specific employer or endeavor outlined in your EB-2 NIW petition. However, your green card will initially be conditional and valid for two years.

Within the 90-day period before your conditional permanent residence expires, you must file Form I-751, Petition to Remove Conditions on Residence, to remove the conditions and receive a permanent green card valid for 10 years. You will need to provide evidence that you have continued to engage in the endeavor outlined in your EB-2 NIW petition.

After removing the conditions, your permanent resident status will be fully unrestricted, allowing you to live and work permanently in the United States. You can then apply for U.S. citizenship after meeting the required residency period.

Free EB-2 NIW Evaluation

If you’re considering the EB-2 NIW visa, it’s crucial to have your case thoroughly evaluated by experienced immigration attorneys. At IBP Immigration Law, we offer free pre-evaluations to assess your eligibility and provide consultations to create an individualized strategy for the best path forward. 

During the evaluation, we’ll review your background, qualifications, and proposed endeavor to determine if you meet the EB-2 NIW requirements. Our attorneys will the consult with you and analyze the strength of your evidence and advise you on the necessary documentation to build a compelling case.

Don’t navigate the complex EB-2 NIW process alone. Take advantage of our free pre-evaluation and benefit from our expertise. Our attorneys have successfully handled numerous EB-2 NIW cases and understand the nuances involved in securing approval.

The EB-2 NIW visa offers a unique opportunity for individuals with exceptional abilities to contribute to the national interest of the United States. However, the application process can be challenging, and having experienced legal counsel can significantly increase your chances of success.

Contact us today to schedule your free pre-evaluation and then your consultation. Our attorneys will provide you with an honest assessment and guide you through the next steps. Invest in your future and take the first step towards securing your EB-2 NIW visa with our assistance.

Attorney Ingrid Borges Perez speaks
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