EB-2 and the National Interest Waiver

What is the EB-2 Petition?

Key Takeaways from This Page:

1) The EB-2 (NIW) is generally easier to qualify under than the EB-1A petition. With the right strategy

2) The EB-2 (NIW) petitioner can petition on their own behalf but must show that granting them this waiver to a job offer and PERM process is in the national interest.

3) Generally, doing research and publishing that research will be viewed by USCIS as providing national benefits.

4) Aside from a few select countries, the priority dates are generally current which means a beneficiary can generally file their I-485 application for a green card at the same time they file their I-140 EB-2 (NIW) petition.
The EB-2 petition is a petition type that is found within the second preference category for United States employment-based petitions. It is the second highest preference category for employment-based petitions. It is a preference category reserved for those individuals who are considered " exceptional " in their respective field or who hold  advanced degrees or have a certain amount of experience in the field juxaposed with certain a lesser degree. Indeed, the statue makes clear that the preference category is applicable for two particular types of beneficiaries: 1) individuals with exceptional ability and 2) individuals who hold an advanced degree or some combination of eduation and experience. In short, this is the second highest classification category for aliens petitioning for employment-based immigration and corresponding and has very particular statutory and regulatory requirements that must be met in order to qualify.
Why Should You Choose Immigration Advocates? Let Us Tell You Why. Click Here.

Who Qualifies for the EB-2 Preference Category?

There are several very specific requirements that a petitioner must meet in order to be qualified under the 2nd employment based immigration preference category. First and foremost, one must first qualify the beneficiary as either a) a beneficiary with exceptional ability in the arts, sciences, or business or b) an individual holding an advanced degree beyond a baccalaureate degree (ie at least an MA). However, one may also qualify as an individual with advanced degree if they hold only a baccalaureate but can show that they have at least five years of progressive experience in their profession. But for the 2nd preference category, that is all that is needed to make a prima facia showing that one qualifies.

But A Job Offer Is Required With a PERM Labor Certification

However, even if one qualifies as an individual with exceptional ability or has an advanced degree, this preference category does require a corresponding job offer in the beneficiary's field of expertise. This job offer also mandates a PERM Labor Certification. Unless the beneficiary is able to claim one of the exceptions to the PERM Labor Certification and job offer, the U.S. employer must sponsor and file on the beneficiary's behalf the I-140 after an approved labor certification is received.

What Exceptions Are There To Having a Job Offer and Labor Certification?

As noted, in general the EB-2 preference category mandates a job offer and corresponding labor certification. However, there are certain exceptions to the job offer and labor certification requirements. These exceptions are as follows:

1) The job fits in a Schedule A designation

2) The individual establishes that he/she qualifies as an occupation as listed in the Labor Market Information Pilot Program; or

3) The individual qualifies for a National Interest Waiver.

What Is The National Interest Waiver?

While the traditional EB-2 petition requires an employer to petition, the exception for the National Interest Waiver program allows an avenue for individuals whose continued presence in the U.S. would benefit the "National Interest".  This means that the EB-2 labor certification process would not adequately take into account the value the individual offers in terms of their continued presence and employment.  While a labor certification is primarily based on education level, availability of U.S. persons with similar educational/work experience, and payment of a prevailing wage, the National Interest Waiver exists in recognition of the fact that simply reducing an individual to the degree they earned is not an adequate way to identify the potential of an individual.  

To determine if granting a waiver would be in the national interest, USCIS applies a three-pronged test:

1) The beneficiary is seeking employment in an area of substantial instrinic merit to the US and it will provide national benefits;

2) The beneficiary is well positioned to advance the proposed endeavor; and 

3) On balance, it would be in the national interest to grant a waiver of the normal job and labor certification requirements.

This three-prong test is set out by the AAO Decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).  You can download the decision PDF  here .

Why Do People Choose The EB-2 and NIW?

The EB-2 and NIW have several pros and cons that influence whether an individual may choose to file under this particular petition category. 

The first major point that may influence whether an individual should consider filing this petition category is that it is generally easier to get approved under this petition category than the EB-1A standard. Although each applies a different legal standard and each case is different, on the whole the EB-2 standard is generally considered less burdensome than the EB-1A standard.

Another benefit is that an EB-2 (NIW) petition does not require an employer-sponsor.  An indivdual can self-petition, with or without a job offer, granted they can meet the NIW requirements.  This often allows for more employment flexibility than a traditional EB-2 petition.

The downside of an EB-2 (NIW) petition is that it is generally more difficult to obtain approval than that of an EB-2 (PERM) petition, since the burden is on the individual to prove that their continued presence would benefit the U.S. national interest.  Additionally, particularly for individuals from China or India, priority dates may not be current due to per-country limitations -- meaning that a green card may not be immediately available. Even if your priority date is not current, there may be several benefits to obtaining EB-2 (NIW) approval, such as H-1B extension, work authorization for an H-4 spouse, and potential ability to port the priority date to a future petition.

niw eb2 national interest waiver niw eb2 national interest waiver niw eb2 national interest waiver niw eb2 national interest waiver niw eb2 national interest waiver niw eb2 national interest waiver niw eb2 national interest waiver niw eb2 national interest waiver niw eb2 national interest waiver niw eb2 national interest waiver niw eb2 national interest waiver niw eb2 national interest waiver niw eb2 national interest waiver niw eb2 national interest waiver
Free No Obligation Case Evaluation: Click Here!