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What is an EB-2 NIW visa?

The EB-2 visa is designed for individuals with advanced degrees or exceptional abilities and allows for a National Interest Waiver (NIW) if their employment benefits the U.S. national interest. This waiver enables applicants to self-petition for lawful permanent residency by submitting Form I-140, the “Immigrant Petition for Alien Worker,” independently without a job offer or PERM certification.

EB-2 NIW Fees Cost Overview
The EB-2 NIW application begins with a $715 fee for filing Form I-140 plus additional fees, if applicable. If residing in the U.S., applicants must also pay for Form I-485 and a medical exam. Abroad, the consular processing fee is $345.

EB-2 NIW Processing Times
Processing times for Form I-140 range from 10.5 to 26.5 months. Post-approval, applicants should consult the Visa Bulletin for green card availability. In the U.S., Form I-485 processing can exceed 8 months, while consular processing abroad typically takes more. For real-time updates, utilize the USCIS processing times tool and check your case status online.

Background: Framework Evolution
In 1998, USCIS’ AAO set a three-pronged framework for NIW petitions in the Matter of NYSDOT, which evolved significantly by the 2016 Matter of Dhanasar decision. This newer decision refined the criteria, removing ambiguous terms and simplifying the requirements, emphasizing the practical impact over procedural formalities.

EB-2 NIW Eligibility Requirements
To qualify for an NIW, the applicant must demonstrate that their endeavor has substantial merit and national importance, they are well-prepared to undertake it, and that waiving the standard job offer and PERM certification requirements serves the national interest better than enforcing them. This does not necessarily require immediate or guaranteed success but should indicate significant potential and a substantial impact on the national landscape.

Advanced Degree or Exceptional Ability Criteria
Applicants must demonstrate that they possess either a foreign equivalent of an advanced degree or an exceptional ability in their field. Exceptional ability requires a level of expertise significantly beyond the norm in the sciences, arts, or business. For an advanced degree, the minimum requirement is equivalent to a master’s degree, or a bachelor’s degree accompanied by at least five years of progressive post-baccalaureate work experience.

EB-2 NIW Evidence Collection

To satisfy the NIW criteria, applicants need to compile compelling evidence, which will be attached to Form I-140. This section provides principles for assembling evidence and lists key documents to support the NIW application.

Guidance for Compiling NIW Evidence

USCIS guidelines for NIW petitions are case-specific due to the absence of predefined supporting documents in the statutes. To assess whether an applicant is “well-positioned” to implement their endeavor, USCIS officers may consider:

• Educational qualifications
• Relevant skills
• Proven success in their field
• Knowledge applicable to the proposed endeavor
• A detailed plan of action
• Evidence of steps taken towards achieving the goal
• Interest from stakeholders like shareholders, customers, or other relevant parties

To justify waiving the PERM certification, factors might include:

• The practicality of obtaining a job offer or labor certification for the applicant’s skills
• The broader benefits of the applicant’s contributions to the U.S., irrespective of the impact on similar U.S. workers
• The critical need for the applicant’s skills in the U.S.

Evidence Examples for NIW

Entrepreneurs could demonstrate the impracticality of obtaining labor certification, argue the unique importance of their contributions, or scientists could highlight the urgent need for their work. Suitable evidence might include:

• Relevant data and statistics
• Media coverage highlighting the applicant’s impact and the national importance of their work
• Scholarly articles and research findings
• A comprehensive project plan detailing the approach to achieving their goals
• Expert letters endorsing the applicant’s contributions (details in FAQ)
• Awards, patents, conference papers, or other forms of recognition
• Resume and academic degrees

For entrepreneurs, additional evidence might include:

• Proof of start-up capital
• Letters of intent or business contracts

This narrative should address each of the three NIW criteria effectively.

Evidence for Advanced Degree

For those applying under the advanced degree category, evidence includes:

• A diploma and transcripts for a master’s degree or higher
• Or a bachelor’s degree with employer letters confirming five years of progressive post-bachelor work experience

Evidence for Exceptional Ability

Applicants in the exceptional ability category must provide at least three of the following:

• Academic records from relevant educational institutions
• Proof of payments for professional services
• Professional licenses or certifications
• Membership in professional associations
• Letters confirming ten years of relevant full-time experience
• Recognition from peers, governments, or professional organizations

Providing more than the minimum required documents is advisable to convincingly demonstrate exceptional ability.

All documents should be methodically prepared and submitted with Form I-140, following USCIS guidelines for a successful application process.

Check out this video featuring Hernan L. Sarmiento’s experience on YouTube.