How to Apply for EB-2 NIW (National Interest Waiver) Green Card, Complete Guide

There are various methods of obtaining a green card for a foreign national in the United States, almost all of which can be lengthy and tedious in nature.

One of them is applying for permanent residence based on employment in the United States.

Speaking of employment based green cards, they fall under a variety of categories ranging from:

• EB-1 Green Card for Priority Workers
• EB-2 Green Card for Advanced Degrees
• EB-3 Green Card for Professional and Skilled Workers
• EB-4 Green Card for Religious Workers and Special Immigrants, and 
• EB-5 Green Card for Investors

Normally, to submit any of these employment based petitions, the U.S. employer hiring you, must go through the PERM labor certification process. 

This requires the employer to advertise the job and demonstrate to the U.S. Department of Labor that no qualified U.S. workers applied for the job.

Some employment based visas, such as ‘EB-1 Green Card for Priority Workers’ and ‘EB-2 Green Card for Advanced Degrees’ allow to skip  the cumbersome labor certification process and let eligible foreign nationals petition themselves.

In this guide, we will provide you with a detailed overview of the Second Preference Employment-Based Immigration National Interest Waiver, or EB-2 NIW.

What is EB-2 NIW (National Interest Waiver)

The second-preference employment category (EB-2) allows foreign nationals holding advanced degrees and individuals with exceptional ability in the Arts, Sciences and Business to get a U.S. green card.

A National Interest Waiver (NIW) petition falls in the employment-based, or so-called “second-preference (EB-2)” immigration category.

National Interest Waiver (NIW) is a provision, which lets EB-2 green card applicants skip the intensive PERM Labour Certification process, cutting down their green card wait time by significant amounts.

NIWs are usually granted to those who have exceptional ability (details provided later in the guide) and whose employment in the United States would greatly benefit the U.S. nation. 

The EB-2 NIW applicants can also self-petition, which means they do not need an employer to sponsor them. They can file Form I-140, Petition for Alien Worker on their own behalf.

A labor certification requires a U.S. employer to assure the U.S. Department of Labor that due to the unavailability of any qualified U.S. worker for the position, the employer sought towards hiring the foreign employee. 

Can Software Engineers File for EB-2 NIW?

Yes, software engineers can file for EB-2 National interest waiver, provided they have:

• At least 10 years of full-time experience in their profession,
• Significant contributions to the IT industry in the U.S. and 
• Some exemplary recognition for their achievements by diginitries the fields, among other requirements.

Software engineers with EB-2 NIW green cards working in the U.S., work in diverse projects, from advanced cybersecurity techniques to computer-assisted engineering and mathematics simulation models. 

The attorneys at SelfLawyer will help you prepare documents, including a very detailed summary and analysis based upon law and facts, and submit your EB-2 National Interest Waiver petition to the USCIS.

Can Physicians Apply for EB-2 NIW?

Yes, physicians can apply for the second preference employment category (EB-2) NIW.

For example, USCIS may grant the national interest waiver when a physician agrees to work for a period of time in a designated underserved area.

How Much Does it Cost to File for EB-2 NIW?

The cost break up of filing for the second preference employment category NIW is shown below:

• I-140 Immigrant Petition for Alien Worker: $700
• I-485, Application to Register Permanent Residence or Adjust Status: $1,140
• Biometric fee: $85 (if applicable)
• DS-260 filing fee: $230 (if you are filing from outside the United States)
• Cost of medical exam (Form I-693)
• Legal fees (if you hire an immigration attorney)

Is a Job Offer Required for EB-2 NIW Approval?

National Interest Waiver is a provision under which a foreign national can apply for employment-based green card without a job offer from an American employer.

So the answer is No.

A foreign national can file their own EB-2 NIW petition and file the I-140 form on their own behalf, without the involvement of either an employer or a labor certification.

EB-2 NIW Category for India

As of now (July 2020), all EB-2 applicants can file their Form I-485 along with their I-140 petitions, except nationals of mainland China and India. 

For the latest visa bulletin cut-off dates for immigrant visa applications, click here.

Immigrant visas are not currently available for individuals born in India and petitioning for an NIW under the EB-2 category. 

In fact,current backlogs are longer and heavier for Indian born individuals than even for China born applicants.

However, there is a way for the Indian applicants to be in an advantageous position, to continue working and living lawfully in the U.S.

Applicants from India can file EB-2 NIW petition and obtain an NIW I-140 Immigrant Petition approval, while having a valid non-immigrant  visa status, like the H-1B visa.

• Filing the NIW will allow applicants to petition, receive approval, and wait for an immigrant visa, which can be used to support H-1B extensions beyond the normal six-year limitation, until the immigrant visa is available.
• The approved I-140 petition for EB-2 NIW can allow the H-1B visa holder’s spouse for a H-4 work authorization, and 
• The applicant’s NIW I-140 approval can allow them to transfer their I-140 priority date to another future I-140 Immigrant Petition filed under a different category.

In short, there are many ways for an individual born in India to benefit from an NIW even though they will not be able to immediately apply for permanent residency.

EB-2 NIW Criteria

In order to be qualified for EB-2 NIW (National Interest Waiver), the foreign national must either have an ‘exceptional ability’ or hold an advanced degree (or its equivalent) in fields of  sciences, arts, or business.

The table below enlists the eligibility criteria of all the occupational categories and requirements for foreign candidates applying for an EB-2 NIW green card.

EB-2 NIW Advanced Degree Requirements

EB-2 NIW Exceptional Ability Requirements

Criteria for National Interest Waiver

Foreign nationals seeking a national interest waiver to the Labor Certification, must work towards the best interest of the United States. 

Although the jobs qualifying for a national interest waiver are not defined by statute, NIWs are granted to aliens with exceptional ability, whose employment in the United States would greatly benefit the nation.

Those seeking a national interest waiver may self-petition and directly file their Form I-140, Petition for Alien Worker to the USCIS.

Note: EB-2 petitions should be filed along with an approved Application for Permanent Employment Certification from the Department of Labor on ETA Form 9089, however, this requirement may be waived, in case of a National Interest Waiver case.

EB-2 NIW Dependents

Once your I-140 petition is approved, your immigrant spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States in E-21 and E-22 immigrant status, respectively.

Your (EB-2 NIW applicant) dependents will also be able to file the Form I-485 Adjustment of Status Applications (once your EB-2 priority date is current) as part of your NIW green card application process, allowing them to receive their own green cards.

EB-2 NIW for Entrepreneurs

A foreign entrepreneur without a job offer from a U.S. employer can self-petition himself/herself, if the foreign entrepreneur qualifies for a second category employment National Interest Waiver.

Many foreign entrepreneurs filing under the EB-2 visa category, make it through the EB-2 NIW category, for which they must meet the requirements of the NIW petition.

As mentioned above, a foreign entrepreneur can only apply for an immigrant visa through this petition if he/she holds an advanced degree, or holds an ‘exceptional ability’ in the fields of science, arts or business.

There are specific provisions for an entrepreneur who is applying for NIW.

The NIW allows the foreign entrepreneurs to bypass the PERM certification entirely. With this provision, he/she doesn’t need an employer’s petition or labor certification.

The foreign entrepreneur, however, will have to convince the USCIS that their proposed endeavor will have significant potential to employ U.S. workers, along with substantial positive economic impacts. 

Recommendations and positive reviews from the foreign entrepreneur’s clients who have or are willing to patronize their enterprise will support the entrepreneur’s case strongly.

In order to get a PERM waiver, the entrepreneur must present evidence to confirm that the benefits of his/her business will outweigh the significance of enforcing the PERM.

EB-2 NIW Premium Processing Time

In general, you can expect the USCIS to process and adjudicate your EB-2 NIW applications to range between 3 and 9 months. 

However, the processing time could be extended, if you are issued a Request for Evidence (RFE). 

Also, the time taken to process an EB-2 NIW depends upon a number of factors, including:

• the USCIS Service Center assigned, and 
• the officer assigned to the case, or the adjudicator.

Unfortunately, premium processing is not available for I-140 petitions that are filed with National Interest Waivers. 

Currently, there are two USCIS Service Centers handling I-140 petitions. They are:

• the Nebraska Service Center, and 
• the Texas Service Center.  

Processing times vary upon the caseloads of these centers, along with individual officers.

At present (July 2020), the Texas Service Center claims that cases are taking nearly 4 to 6 months to process the NIW cases, on an average, while the Nebraska Service Center is processing the cases in 6.5 to 7.5 months.  

You can check the latest processing time for your EB-2 NIW pending petition here. 

Are EB-2 NIW Eligible to File Form I-485?

In order to obtain an EB-2 NIW green card, you must file and receive the approval of Form I-140 Immigrant Petition, along with Form I-485, Adjustment of Status.

There are two application procedures to fulfill this.

• Concurrent Filing: It means filing the Form I-140 and Form I-485 together. You can carry on with this step, if the visa number is available for your category. You need to check the latest Visa Bulletin (bulletin is issued each month), scroll down to “Employment-Based Preferences” and check the visa availability in your category “2nd”. Letter “C” in your country of birth column means you can file Form I-485 immediately.

This means that if you are a national of India or China, you cannot file Forms I-140 and I-485 concurrently, as the EB-2 priority dates for the two countries are not current, according to Visa Bulletin.

• Separate Filing: In this method, you will first file your NIW Form I-140 petition and only after it gets approved and the visa number will become available for your category, you will be able to file Form I-485.

In the separate filing procedure, you must make sure that your EB-2 priority date is current.

Once your Form I-485 package (Form I-485 with all its supporting documents) is approved, you will be issued a green card.

Can NIW and EB-2 Perm be Filed Together?

A common doubt arises among applicants, if EB-2 NIW petition and EB-2 Perm petition can be filed together.

The answer is, they most definitely can.

The USCIS individually adjudicates all the I-140 petitions.

This means an applicant can file multiple petitions in different categories simultaneously and even then, the petitions would not affect one another.

Similarly, you can file an employer sponsored EB-2 PERM petition and a self-petitioned EB-2 NIW petition at the same time.

As the latter falls under the ‘self-petition’ category, you can freely change your employment without worrying about transferring your EB-2 petition from the old employer to the new.

Who can Apply for EB-2 NIW?

The EB2 visa is the second preference employment-based green card category that grants US permanent residency to foreign nationals with advanced degrees or exceptional ability.

Eligible persons for EB2 immigrant visa include those who:

• Hold an advanced degree or its equivalent; or
• Have an exceptional ability in the sciences, arts, or business.

A foreign national who abides by the Matter of Dhanasar decision:

• The foreign national’s proposed endeavor has both substantial merit and national importance.
• He or she is well positioned to advance the proposed endeavor.
• On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

EB-2 NIW Checklist of documents

Documentation of past accomplishments play the most significant role for the USCIS to decide whether or not to grant a National Interest Waiver (NIW).

Physician National Interest Waiver Green Cards (EB-2) 

A Physician NIW is a variation of the NIW available to certain medical professionals. Under a Physician NIW, a qualifying alien physician commits to working for five years in clinical practice in an underserved area or in a Veterans Affairs (VA) facility.

Physicians are among the highest number of applicants for the EB-2 NIW green cards.

Below is the list of eligibility criteria for a Physician National Interest Waiver.

• You will have to work full-time in a clinical practice, for at least a period of service of 5 years.
• You must work in a primary care, like as a general practitioner, family practice petitioner, general internist, pediatrician, obstetrician/gynecologist, or psychiatrist, or be a specialty physician
• You must serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA)
• You must obtain a statement from a federal agency or a state department of health, which will demonstrate your qualifications as a physician, which states your work is in public interest. This statement is known as an attestation.

In order to apply for a Physician NIW, you will need to file Form I-140, followed by Form I-485, Adjustment of Status.

You will need to submit a list of supporting documents along with your I-485 petition, while filing for a Physician NIW. These documents are listed below.