Last updated: November 9, 2025.
By Asel Williams, Esq. · Columbia Law School · Licensed immigration attorney
What is EB-2 NIW?
The EB-2 NIW (“Employment-Based Second Preference National Interest Waiver”) visa is a subcategory of the general EB-2 visa.
It is granted to individuals whose merits justify waiving the PERM Labor Certification process required for a standard EB-2 visa.
An EB-2 NIW beneficiary shows exceptional ability such that the PERM Labor Certification may be forfeited since the individual’s skill set is in the U.S.’s national interest to an extent that offsets the interest of ensuring that available jobs are reserved for U.S. workers.
An EB-2 NIW visa has many advantages in addition to being able to be self-petitioned.
For instance, its lack of connectivity to an employer means that a successful applicant may have more flexibility in switching jobs, geographic locations, or working independently.
Relatedly, even an individual who may qualify under a first preference employment-based immigrant visa category (such an EB-1B professor or researcher) may want to “move down” to this second preference category to circumvent the requirement of having a job offer/PERM Labor Certification (in addition to being tethered to that employer).
Because the EB-2 NIW visa is, as of August 2024, current for all nationalities except China and India, this would be a compelling reason to apply under this second preference category.
Alternatively, an innovative researcher who, for example, does not qualify for the EB-1B visa because they do not have three years of teaching and/or research experience, may still opt to apply for a green card under the EB-2 NIW category rather than waiting until they qualify under a first preference category.
Watch an interview with my client Aamir from Pakistan who got his EB-2 National Interest Waiver green card approved in 15 months:
EB-2 NIW requirements
So, what are the requirements for an individual to be eligible for an EB-2 NIW visa?
First, the EB-2 visa applicant must qualify for the standard EB-2 NIW visa (with the exception of having a job offer and the corresponding PERM Labor Certification process associated with such job offers).
To qualify for the EB-2 visa generally, the applicant must hold an advanced degree (Master’s, PhD, etc.) or a bachelor’s plus five years of progressive work experience, or, in the alternative, show that they have exceptional ability.
If an applicant files for an EB-2 visa under the “exceptional ability” category, the applicant must show at least three of the following criteria:
- Certificate from an institution of learning relating to the applicant’s area of exceptional ability;
- Letters from applicant’s current or former employers documenting at least 10 years of full-time experience in the relevant occupation;
- License showing applicant’s authorization to practice the relevant occupation;
- Evidence of salary for services that demonstrates exceptional ability;
- Membership in a professional association(s);
- Recognition for applicant’s achievements and significant contributions to the relevant industry by applicant’s peers, government entities, or professional/business organizations;
- Other comparable evidence of eligibility.
Essentially, unlike the standard EB-2 visa beneficiary, an EB-2 NIW beneficiary need not have a job offer (and thus need not have their employer file the petition and undergo a PERM Labor Certification).
The extra step which takes the EB-2 NIW visa beyond the standard EB-2 visa is demonstrating the beneficiary’s proposed endeavor(s) as being strongly in the U.S. national interest.
While the threshold for this standard is lower than the EB-1A visa’s “extraordinary ability,” it still requires a showing of exceptional ability in a field of U.S. national interest.
In practice, even if a beneficiary qualifies for the EB-2 NIW under an advanced degree, they would have to show that this advanced degree is in some way exceptional so as to meet a vital U.S. national interest.
The legal standard for an EB-2 visa applicant establishing a skillset that is within the U.S.’s vital national interest is set out in the seminal case of Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), where the USCIS’s Administrative Appeals Office set out a three-pronged test to this effect. The applicant must establish that:
- The proposed endeavor has both substantial merit and national importance;
- The applicant is well positioned to advance the proposed endeavor;
- That, on balance, it would be beneficial to the United States to waive the requirements of a job offer/labor certification.
A further deep dive into the substantive aspects of each of the three prongs are expanded upon below.
Prong 1: proposed endeavor has both substantial merit and national importance:
This first prong in itself has two requirements: one, that the endeavor has “substantial merit,” and, two, that the endeavor has “national importance.”
Substantial merit pertains to the overall significance and worth of the proposed work, while national importance highlights the specific impact that the proposed work will have on the United States.
A project with substantial merit but lacking national importance could be innovative and beneficial within a niche field but may not affect broader national interests.
Conversely, a project with national importance but limited substantial merit might address a critical national need but may not be particularly innovative or advanced within its specific field.
As an illustrative example, consider an individual with a Master’s in Urban Planning who has been working with a small city’s local government to make roads more efficient.
Such an individual meets the educational requirement of an advanced degree to qualify for the general EB-2 visa, and their work in road connectivity is certainly of substantial merit within the field of urban planning.
However, can the individual show that their work is translatable to the national level?
It is only when this further step can be demonstrated that USCIS will find that the first prong of the three-step Dhanasar test has been met.
Generally, then, what the applicant will want to argue is that their work can be implemented by others in the field across the country, such that it serves the national interest in scope.
However, a strict showing of broad geographic scope is not necessarily required to show national interest.
It may also be that the subject matter is of inherent U.S. national interest and/or that the proposal will strengthen local economies, in which the national interest is employing U.S. workers in economically depressed areas.
Presidential executive orders — as well as, relatedly, executive branch memorandums, policy manuals, and strategic guidance documents — serve as compelling evidence to USCIS that a certain substantive field and/or policy outcome is in the U.S. national interest.
Examples may include subject areas within the STEM umbrella, or positive educational/health outcomes for U.S. nationals.
Prong 2: the applicant is well positioned to advance the proposed endeavor;
For the EB-2 NIW visa applicant to show that they are well positioned to advance their proposed endeavor, the applicant should show that their past accomplishments and current endeavors will enable them to accomplish their proposed work.
Essentially, this prong is the necessity for the applicant to show USCIS that not only does their work have substantial merit and national importance, but that the applicant themself is well-suited as an individual to advance the cause of this work.
This is generally accomplished by the applicant showing their background and expertise.
For instance, meeting the educational and/or experiential requirement for the EB-2 visa generally shows a requisite initial step in this direction.
Moreover, showing that the applicant themself significantly contributed to, e.g., the team project advancing a particular field of U.S. national interest will go a long way in establishing individualized aptitude in advancing the proposal.
Some evidence the applicant may want to show USCIS in this regard include, but is not limited to:
- Letters of recommendation from experts in the field attesting to the applicant’s contribution to the field and its importance to the U.S. national interest.
- NOTE: These letters of recommendation should ideally include independent experts whom the applicant did not have a working relationship with. This is because USCIS will more highly value such reviews due to a perceived lack of bias in such attestations. Nonetheless, an applicant may — and is even encouraged — to also include experts with whom the applicant does have a relationship, since such reference letters will most likely contain the most detailed support. A well-grounded EB-2 NIW petition will generally include 4-6 reference letters containing a mixture of recommendations from both categories.
- Publication record of the applicant’s published work and/or record of other experts’ citations of the applicant’s published work.
- Government funding/grants for work the applicant has been part of (ideally showing the applicant individually played a significant role in applying for and procuring these funds).
- Patents/contracts the applicant has attained for their prior and/or current work.
- Applicant being a member of an organization in their field of expertise which requires outstanding achievements as their selective criteria (particularly if the organization is of national/international scope).
- Awards granted to the applicant for their work (ideally if such awards are of national/international significance, though this is not dispositive if the award is regional but the field of work can be tied to one of intrinsic national importance).
Prong 3: on balance, it would be beneficial to the United States to waive the requirements of a job offer/labor certification.
In the early period following the Dhanasar opinion, it was assumed that this third prong merely represents a “final merits” phase of EB-2 NIW visa adjudication, and thus compellingly establishing the first two prong would lead to a meritorious ruling on the third prong.
However, while it is still rare for USCIS to issue a denial or Request For Evidence (RFE) based on the third prong, in recent years immigration lawyers have come to realize that the issues USCIS did give to EB-2 NIW applicants on this prong involved a lack of demonstration of why, despite the documented benefits the EB-2 NIW applicant brings to the table, the U.S. should forego a PERM labor market certification to protect its own workers.
Thus, to satisfy this third prong, it is important to highlight the impracticability or muted necessity of a labor certification. Such examples include:
- Showing the inapplicability of a labor certification for the specific applicant
- E.g., The applicant’s compelling interest work involves entrepreneurship where the applicant themself is an employer, hence there is no necessity to protect U.S. jobs since U.S. jobs are being actively created by the applicant’s proposal.
- Showing that even if other qualified U.S. workers are available, the U.S. would still benefit from the applicant being allowed to pursue their work without being subject to a labor certification.
- E.g., If it can be shown from an executive order that the U.S. must attain the world’s leading edge in artificial intelligence (AI), then denying an immigrant visa to a novel AI researcher who can assist in this mission simply because there are U.S. workers with different contributions who meet the educational criteria to work in the field would limit the maximization of the U.S.’s competitive edge.
- Showing that there is time-sensitivity/urgency in the applicant being able to work in the field.
- E.g., There is an ongoing epidemic (e.g., COVID, Mpox, HIV) that requires imminent research into treatment/prevention, the effort of which would be curtailed if subject to a lengthy labor certification requirement.
EB-2 NIW checklist
Here is a checklist of documents you should have on hand for an EB-2 NIW petition:
- Two copies of a completed ETA 9089 form;
- Completed I-140 form;
- Copy of passport (only stamped pages);
- Evidence of current nonimmigrant visa status, if applicable;
- Copy of most recent I-94 record;
- Copy of complete CV;
- Copy of academic transcript (degree/grades);
- Copy of name/foreign address identification (note: must also include attachment written in applicant’s native alphabet if the applicant’s country does not have an official language which uses Roman characters);
- Any complementary evidence corroborating your individual EB-2 NIW case (e.g., letters of recommendation, published articles, evidence of other experts in your field relying on and/or citing your work, past/current contracts, awards, grants, patent record, etc.).
EB-2 NIW priority date
The EB-2 NIW priority date is represented by the date in which the applicant (or the applicant’s employer, should the employer voluntarily wish to do so) submits the Form I-140, Immigrant Petition for Alien Workers.
An applicant can see when their priority date is by visiting the latest monthly bulletin, updated monthly by the U.S. Department of State.
As of August 2024, no countries are “current” for the EB-2 visa category.
This means that if any national around the world were to apply for a second preference employment-based green card in August 2024, there would be no available green cards and they would have to wait until one becomes available by tracking the monthly visa bulletin.
Note that, as mentioned at the outset, the EB-2 NIW visa is merely a subcategory of the general EB-2 visa category.
At the start of each fiscal year (from October until the following October), Congress sets aside approximately 140,000 employment-based visas, of which around 40,040 (or 28.6%) are reserved for the EB-2/EB-2 NIW second preference category.
That limited number itself is subject to a per-country limit of 7% of the total amount, hence causing countries with large populations (particularly China and India) to be backlogged.
EB-2 NIW backlog
As mentioned, per the August 2024 visa bulletin, there is a backlog for all nationals around the world in the EB-2 NIW category.
This tends to fluctuate, with some months being current for most countries around the world. However, as also mentioned, China and India in particular tend to be chronically backlogged regardless of month, with Mexico and the Philippines next in line.
The August 2024 visa bulletin has the breakdown of EB-2/EB-2 NIW visa backlogs as follows, with each date representing the priority date an applicant from various nationalities would face if applying for the EB-2 NIW visa in August 2024:
- China: March 01, 2020
- India: July 15, 2012
- Mexico: March 15, 2023
- Philippines: March 15, 2023
- All other countries: March 15, 2023
EB-2 NIW processing time
It generally takes 9-12 months for an EB-2 NIW visa petition to be processed with regular processing, plus an extra few months if USCIS issues a Request For Evidence (RFE) — which is more common with EB-2 NIW visas than standard EB-2 visas.
However, the EB-2 NIW visa has an option for premium processing within 45 calendar days for an additional fee of $2,805 (“Form I-907, Request for Premium Processing Service”).
This is still subject to several additional months of adjudication if RFE is issued, though the final submission of the petition following the RFE must still be processed within 45 calendar days.
EB-2 NIW approval rate
As per USCIS’s latest statistics, the approval rate of EB-2 NIW visa petitions is quite high at 79.67% as of fiscal year 2023.
Although this rate is high, it should be noted that it is still lower than the even more impressive 98.81% approval rate for non-NIW EB-2 visa petitions for the same fiscal year.
This difference is likely due to the more subjective nature of adjudicating an EB-2 NIW petition, which is why the petition you submit under this category should ideally be handled by an experienced immigration attorney who will properly consult as to the best manner to navigate this visa petition.
Are EB-2 NIW Eligible to File Form I-485 concurrently?
Yes, but only if the applicant’s nationality is current on the latest visa bulletin.
For example, as of August 2024, no nationality is current, hence the I-140 petition marking the EB-2 NIW visa petition should be submitted first, and only once a visa becomes available for the applicant should the applicant file Form I-485, Application to Register Residence or Adjust Status.
It is important to note that even if the applicant’s priority date is current, it may be wise to first file the EB-2 NIW petition since approval for an EB-2 NIW visa is not as certain as a standard EB-2 visa petition.
Because the I-145 petition hinges upon the Form I-140 marking the EB-2 NIW petition, it will automatically be denied if the underlying EB-2 NIW petition is denied.
Due to the cost of filing Form I-485 (particularly if there are several dependent family members involved), it is only recommended to concurrently file when the EB-2 NIW petition is particularly strong and has a fairly certain chance of being approved.
The EB-2 NIW visa is also eligible for 45-day premium processing, so if an applicant would in any case be opting for premium processing, it would be all the more wise to await the relatively short time frame for the EB-2 NIW visa adjudication prior to proceeding with Form I-485.
Can NIW and EB-2 PERM be Filed Together?
Yes, but your employer and/or you (if self-petitioning for the EB-2 NIW visa) must file a separate Form I-140 for each category, along with their respective fees.
EB-2 NIW Dependents
If an applicant’s EB-2 NIW visa is approved, the applicant’s spouse and children under 21 are also permitted to enter the U.S under the E-21 and E-22 visa categories, respectively.
This immigrant visa duration is unlimited, since the principal application is tied to a green card – which the entire family receives.
Moreover, the spouse and children of the principal applicant may apply for work authorization while their Adjustment of Status applications (Form I-485) are being processed.
It should be noted that the E-21 and E-22 visa categories are the same for both standard EB-2 and EB-2 NIW visas.
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