EB-2 National Interest Waiver
Legal Services
DeHeng Law Offices PC advises researchers, engineers, physicians, entrepreneurs, business leaders, and other professionals on EB-2 National Interest Waiver petitions. The EB-2 NIW is part of the employment-based second-preference immigrant classification. It allows eligible individuals to request a waiver of the usual job-offer and permanent labor certification requirements when their proposed work is in the national interest of the United States.
A qualifying individual may file Form I-140 on their own behalf without a sponsoring employer. However, the petitioner must first qualify for the underlying EB-2 classification as an advanced degree professional or an individual of exceptional ability and must then satisfy the three-part national interest waiver framework. Approval of an EB-2 NIW petition does not by itself grant permanent residence.
EB-2 Eligibility
Before USCIS considers the national interest waiver request, the petitioner must establish eligibility for the underlying EB-2 classification through either the advanced degree or exceptional ability category.
Advanced Degree Professional
An advanced degree professional generally must hold a U.S. academic or professional degree above the bachelor’s level, or a foreign equivalent degree. A U.S. bachelor’s degree or foreign equivalent followed by at least five years of progressive post-baccalaureate experience in the specialty may be treated as the equivalent of an advanced degree. The qualifying education and experience must relate to the profession and proposed endeavor.
Individual of Exceptional Ability
Exceptional ability means a level of expertise significantly above that ordinarily encountered in the sciences, arts, or business. The petitioner must initially provide evidence satisfying at least three of the following six criteria:
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An official academic record showing a degree, diploma, certificate, or similar award related to the area of exceptional ability.
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Letters from current or former employers documenting at least 10 years of full-time experience in the proposed occupation.
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A license to practice the profession or certification for the profession or occupation.
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Evidence of a salary or other remuneration that demonstrates exceptional ability.
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Membership in professional associations.
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Recognition for achievements and significant contributions to the industry or field by peers, government entities, or professional or business organizations.
Meeting at least three criteria does not automatically establish exceptional ability. USCIS evaluates the evidence in its totality to determine whether the individual has expertise significantly above that ordinarily encountered in the field. Comparable evidence may be submitted when the listed criteria do not readily apply to the person’s occupation.
National Interest Waiver Requirements
After establishing the underlying EB-2 qualification, the petitioner must demonstrate eligibility for a National Interest Waiver under the three-part framework established in Matter of Dhanasar:
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The proposed endeavor has both substantial merit and national importance.
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The individual is well positioned to advance the proposed endeavor.
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On balance, it would be beneficial to the United States to waive the requirements of a job offer and permanent labor certification.
USCIS focuses on the petitioner’s specific proposed endeavor and its potential prospective impact, rather than only on the general importance of the person’s profession or industry. Substantial merit may be demonstrated in fields such as business, entrepreneurship, science, technology, culture, health, or education, but the petitioner must separately establish the national importance of the particular endeavor.
When determining whether the petitioner is well positioned to advance the endeavor, USCIS may consider the person’s education, skills, knowledge, record of success, future plans, progress already made, and interest or support from customers, users, investors, government agencies, or other relevant organizations.