The definitive guide to EB-2 NIW: Everything you need to know about self-petitioning
By Natalie McQuilkin
If you are a foreign national who has done any research on how to work and live in the United States permanently, you know that some pathways, such as the EB-3, require you to have a PERM Labor Certification. To obtain the PERM Labor Certification, you need an employer to petition for you, which can create a lot of anxiety for some who hope to build a life in the U.S.
Although employer-sponsored pathways provide job security, which is definitely an advantage, finding an employer can be a time-consuming process. Not only do you need to find a company willing to hire you, but also one that will take the extra step of petitioning for your entry into the U.S.
There are many other self-petitioning pathways, such as the EB-1, EB-4, and EB-5. However, these employment-based visas may seem out of reach for many foreign nationals due to their eligibility requirements. The EB-1 visa is designed for those with extraordinary abilities in the sciences, arts, business, or athletics; the EB-4 is reserved for “special immigrants,” such as religious workers or retired employees of international organizations; and the EB-5 is intended for those who invest approximately $ 1 million in a new business in the U.S.
However, if you do not fall into any of these self-petition categories, there is still hope. You may qualify for the EB-2 National Interest Waiver (NIW), an employment-based green card reserved for those with an advanced degree or those with exceptional ability in the arts, sciences, or business.
What is the EB-2 NIW?
The EB-2 NIW is an employment-based green card designed for those with an advanced degree, a bachelor's degree plus five years of professional experience, or “exceptional ability” in the arts, sciences, or business. There is also an EB-2 category that requires a Labor Certification, meaning you need an employer to sponsor you and offer you a job in the US.
If you are applying for the EB-2 NIW, you must request the National Interest Waiver, which requires you to demonstrate how your profession and/or exceptional ability is important and beneficial to the United States. USCIS will review this waiver to determine whether your profession or exceptional ability warrants an exemption from the requirements for a job offer and labor certification.
By eliminating the job offer and labor certification requirements, the National Interest Waiver gives you the green light to self-petition. Once you are approved for the EB-2 NIW, you can
apply for a green card, which allows you to live and work legally in the U.S. However, if you are applying from abroad, your green card will be mailed to you upon entering the U.S.
Let's take a closer look at the requirements for this employment-based green card so you can see if you're eligible.
What are the eligibility requirements for the EB-2 NIW?
As previously mentioned, the EB-2 NIW serves foreign nationals who hold an advanced degree (such as a master's or doctorate), a bachelor's degree plus five years of experience, or “exceptional ability” in the arts, sciences, or business. USCIS explains that exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” For example, a mental health worker who has been awarded for outstanding counseling and therapy could fall under the “exceptional ability” requirement. When applying for the EB-2 NIW visa, you must be able to provide proof that you have an advanced degree, a bachelor's degree plus five years of experience, or exceptional ability. If you fall into the exceptional ability category, you must be able to provide three of the following types of evidence:
- An academic record detailing your degree, diploma, or certification from a college, university, school, or other institution
- Recommendation letters from current or former employers documenting at least 10 years of experience
- A license or certification to practice your profession
- Membership in a professional association
- Recognition for achievements in their field by peers, government agencies, and/or professional or business organizations
- Evidence of having received a salary or other remuneration for services, demonstrating exceptional ability
To meet the requirements for the National Interest Waiver, you must demonstrate that your role meets the following three “requirements”:
One of the best things about the EB-2 NIW is that it is not limited to a specific field. In our previous blog posts about the EB-2 NIW, we highlighted how the EB-2 NIW can be applied to a variety of fields, from restaurant owners to ESL teachers.
Here are some real-life examples of cases from various fields that have been approved for an EB-2 NIW: In 2014, a Ph.D. student conducting research on non-invasive and forensic genetics for wildlife conservation was approved for the EB-2 NIW. The student was a member of five professional wildlife organizations, had published five articles, and had presented at 20 conferences. They were invited to speak at five events, and their work was cited nine times. They submitted 12 letters of recommendation.
In December 2016, a service consultant for veterans was approved for the EB-2 NIW. In his affidavit, the consultant explained that they planned to improve services for veterans in the U.S. by working with government and nonprofit groups. A mobile processor software developer and entrepreneur was approved for the EB-2 NIW in April 2020. His affidavit explained that he wanted to “continue his work as an entrepreneur in the field of mobile technology” and improve software for mobile emergency broadcasting services, according to Tigris Legal PLLC.
What is the application process for the EB-2 NIW?
Once you have determined that you meet all the requirements for the EB-2 NIW, you can begin applying for the EB-2 NIW.
The first step is to file Form I-140 (Petition for Alien Workers) and the National Interest Waiver. In recent years, this form has cost $700, but the filing fee will increase to $715 on April 1, 2024, because USCIS has changed several filing fees. As of February 2024, the Nebraska Service Center takes five months to process the EB-2 NIW, and the Texas Service Center takes eight months, according to USCIS.
The second step in applying for the EB-2 NIW will vary depending on where you live.
If you live in the U.S., you can file Form I-485 (Application to Register Permanent Residence or Adjust Status). This form costs $1,225 as of February 2024, but will increase to $1,440 on April 1, 2024, for the same reason mentioned above. You will have to cover the costs of a medical exam and have your biometric data collected, which costs $ 85.
If you live outside the U.S., you do not file Form I-485. You pay an immigrant fee, which will increase from $220 to $235 on April 1. After you pay the immigrant fee, your green card will be mailed to you. Delaying payment of this fee will only delay the time it takes for you to receive it.
What are the benefits of the EB-2 NIW?
At the beginning of this post, we highlighted one of the main benefits of the EB-2 NIW: the ability to file a self-petition. Let's discuss that in more detail here.
When filing a self-petition, you do not have to find a U.S. employer who 1. is willing to hire a foreign national, 2. is willing to file a petition on behalf of a foreign national, and 3. is willing to undergo the lengthy and costly PERM Labor Certification process.
Self-advocacy gives you the flexibility to take control of your own future.
Although you will have to pay the application fees, for many people, these costs are outweighed by the stress of having to find a U.S. employer who will provide them with stable, full-time employment in the United States.
There are many other benefits that come with applying for and receiving an EB-2 NIW, including shorter processing times. Because the EB-2 NIW eliminates the need for an employer to file a PERM Labor Certification on your behalf, the EB-2 NIW has a much shorter processing time than the EB-2 pathway.
Obtaining an approved PERM Labor Certification can take more than a year, according to the U.S. Department of Labor. There is also an option for premium processing, which means you can pay an additional $ 2,805 when filing your EB-2 NIW petition to have your application reviewed within 15 business days.
The most obvious and beneficial advantage of the EB-2 NIW is the ability to obtain a green card for yourself and your family. Once you have received your EB-2 NIW, you can apply to become a lawful permanent resident (LPR). After five years, you can apply for naturalization as a U.S. citizen. Or, if you have been an LPR for three years and are married to a U.S. citizen, you can apply for citizenship in just three years.
Should I work with an immigration lawyer for my EB-2 NIW case?
Ultimately, it is up to you whether you want to file your EB-2 NIW application on your own or work with an attorney on your case. It is important to keep in mind that one of the challenges of the EB-2 NIW is to develop an argument that demonstrates how your occupation or exceptional ability is beneficial and of national importance to the United States.
In fact, according to Tigris Legal, some examples of EB-2 NIW cases that were denied in recent years include a lawyer, a college professor, an aerospace engineer, and a doctor. Although on the surface it does not appear that these foreign nationals would have trouble obtaining an EB-2 NIW, USCIS found that their cases did not offer “valuable contributions” that would benefit the United States. It is up to USCIS to determine whether you meet the three criteria for the National Interest Waiver, and having an immigration attorney on your side can strengthen your case.
Demonstrating your professional and/or exceptional ability can be a difficult task to manage on your own. Eagan Immigration’s lead business attorney, Hannah Whaley, has experience drafting EB-2 NIW affidavits. In these affidavits, she crafts arguments that detail why your profession and/or abilities meet all three criteria. She uses extensive research to support her unique and creative arguments.
In addition, having a lawyer's help can ensure that the application process goes smoothly. Your lawyer can keep you updated on processing times, required fees, and more.
References
Employment-Based Immigration: Second Preference EB-2, USCIS, last updated: April 20, 2022, Employment-Based Immigration: EB-2 Second Preference | USCIS, (last accessed: February 26, 2024). Approved EB-2 NIW Examples, Green Card for Doctoral or Postdoctoral Degree Holders, Approved EB-2 NIW Examples | Green Card for Ph.D. or Postdoctoral Degree Holders, Self-Petition, National Interest Waiver (EB-2 NIW), Extraordinary Ability (EB-1A), (last visited: February 26, 2024).
Akiko Yamada, Esq. What Types of EB-2 NIW Cases Are Approved or Denied? Tigris Legal PLLC, December 5, 2023, “What Types of EB-2 NIW Cases Are Approved or Denied?” (attorneyforusimmigration.com), (last accessed: February 26, 2024). Processing Times, USCIS, Processing Times (uscis.gov), (last accessed: February 26, 2024).
Processing Times, U.S. Department of Labor, last updated: January 31, 2024, Processing Times | Flag.dol.gov, (last accessed: February 27, 2024).
Request for Priority Processing Service, USCIS, last updated: February 26, 2024, Request for Priority Processing Service | USCIS, (last updated: February 26, 2024).
Paige Monachino, “USCIS Increases Filing Fees Effective April 1, 2024,” February 13, 2024, Hodgson Russ LLP, 4598_USCIS Increases Filing Fees Effective April 1, 2024.pdf (hodgsonruss.com), (last accessed: February 26, 2024).