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Advanced Degree OR Exceptional Ability + Labor Certification OR National Interest Waiver

EB-2 National Interest Waiver

  • The position offered must require an advanced degree, which is a Master’s degree or higher. Alternatively, a Bachelor's degree plus five years of related work experience also qualifies. You must have the required degree or its equivalent.

  • Alternatively, you can qualify by showing exceptional ability in the sciences, arts, or business. This means you have expertise significantly above the average. To prove this, you must provide evidence of at least three of the following:

     

    • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability;

    • Letters documenting at least 10 years of full-time experience in your occupation;

    • A license to practice your profession or certification for your profession or occupation;

    • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability;

    • Membership in a professional association(s); or

    • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations.

  • Traditionally, this category requires employer sponsorship and a labor certification from the U.S. Department of Labor. Both these requirements can be waived if the petitioner demonstrates that approval of the EB-2 petition would be in the national interest of the United States.

  • There is a three-part test to determine national interest:

     

    • Your proposed endeavor has both substantial merit and national importance;

    • You are well positioned to advance the proposed endeavor; and

    • That, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.


    See Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)

  • The first prong focuses on the specific endeavor that you propose to undertake. 

     

    Substantial Merit

    The merit of your endeavor can be shown in various fields, including business, entrepreneurship, science, technology, culture, health, or education. It can also be demonstrated without immediate or measurable economic impact. The term "endeavor" is more specific than the general occupation. You should provide details about not only what the occupation usually involves, but also the specific projects and goals you plan to pursue within that occupation. 

     

    National Importance

    USCIS evaluates national importance by looking at the potential impact of your endeavor. They focus on the nature of the proposed work, not just its geographic scope. Your endeavor may rise to the level of national importance if:

     

    • It has significant potential to employ U.S. workers or has other substantial positive economic effects (particularly in an economically depressed area);

    • Broadly enhances societal welfare or cultural or artistic enrichment; or

    • Contributes to the advancement of a valuable technology or field of study.

  • The second prong shifts the focus from your proposed endeavor to you. To determine whether you are well positioned to advance your proposed endeavor, USCIS considers factors the following: 

    • Your education, skills, and knowledge; 

    • Your record of success in related or similar efforts;

    • A model or plan for future activities; 

    • Any progress towards achieving your proposed endeavor; and

    • The interest of potential customers, users, investors, or other relevant entities or individuals.

     

    Evidence may include the following: 

    • Degrees, certificates, or licenses in the field; 

    • Patents, trademarks, or copyrights; 

    • Letters from experts in the field, describing your past achievements and providing specific examples of how the individual is well positioned to advance the person’s endeavor; 

    • Published articles or media reports about your achievements or current work; 

    • Documentation demonstrating a strong citation history of your work or excerpts of published articles showing positive discourse around, or adoption of your work; 

    • Evidence that your work has influenced the field of endeavor; 

    • A plan describing how you intend to continue the proposed work in the U.S.; 

    • A detailed business plan or other description, along with any relevant supporting evidence, when appropriate; 

    • Correspondence from prospective or potential employers, clients, or customers; 

    • Documentation reflecting feasible plans for financial support; 

    • Evidence that you have received investment from U.S. investors; 

    • Copies of contracts, agreements, or licenses showing the potential impact of the proposed endeavor; 

    • Letters from government agencies or quasi-governmental entities in the United States demonstrating that you are well positioned to advance the proposed endeavor; 

    • Evidence that you have received awards or grants or other indications of relevant non-monetary support from federal, state, or local government entities with expertise in economic development, research and development, or job creation; and 

    • Evidence demonstrating how your work is being used by others, such as, but not limited to: 

      • Contracts with companies using products that you developed or assisted in developing; 

      • Documents showing technology that you invented, or contributed to inventing, and how others use that technology; and 

      • Patents or licenses for innovations you developed with documentation showing why the patent or license is significant to the field.

  • The third prong requires you to show that your potential contributions outweigh the requirement of a job offer and labor certification. In performing this analysis, USCIS may evaluate factors such as: 

     

    • The impracticality of a labor certification application;

    • The benefit to the U.S. from your contributions, even if other workers are also available; and

    • The national interest in your contributions is sufficiently urgent, such as U.S. competitiveness in STEM fields.

     

    More specific considerations may include: 

     

    • Whether urgency, such as public health or safety, warrants foregoing the labor certification process; 

    • Whether the labor certification process may prevent an employer from hiring a person with unique knowledge or skills exceeding the minimum requirements standard for that occupation, which cannot be appropriately captured by the labor certification;

    • Whether your endeavor has the potential to generate considerable revenue consistent, for example, with economic revitalization; and 

    • Whether your endeavor may lead to potential job creation.

  • In January of 2022 USCIS updated its policy guidance to include considerations for persons with advanced degrees in science, technology, engineering, and math (STEM) fields and entrepreneurs. USCIS now recognizes the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.

     

    To identify a critical and emerging technology field, USCIS considers governmental, academic, and other authoritative and instructive sources, and all other evidence submitted by the petitioner. One authoritative source is the Critical and Emerging Technologies List by the National Science and Technology Council.

     

    A STEM field may be important to competitiveness or security in a variety of circumstances including:

     

    • When an endeavor will help the United States to remain ahead of strategic competitors or current and potential adversaries; or

    • When an endeavor relates to a field where appropriate activity and investment may contribute to the United States achieving or maintaining technology leadership or peer status among allies and partners.

     

    With respect to the first prong, the evidence should demonstrate that the STEM endeavor not only has substantial merit to U.S. science and technology interest, but also have sufficiently broad potential implications to demonstrate national importance. 

     

    For the second prong, USCIS considers an advanced degree, particularly a Ph.D, in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security, an especially positive factor to be considered along with other evidence.

     

    When evaluating the third prong USCIS considers the following to be a strong positive factor: 

     

    • You possess an advanced STEM degree, particularly a Ph.D.; 

    • You will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and 

    • You are well positioned to advance the proposed STEM endeavor of national importance.

  • As an entrepreneur you may submit the following types of evidence to establish that you qualify for a national interest waiver. 

     

    • Evidence of Ownership and Role in the U.S.-Based Entity; 

    • Degrees, Certifications, Licenses, Letters of Experience; 

    • Investments; 

    • Incubator or Accelerator Participation; 

    • Awards or Grants; 

    • Intellectual Property; 

    • Published Materials about the Petitioner, the Petitioner’s U.S.-Based Entity, or Both; 

    • Revenue Generation, Growth in Revenue, and Job Creation; and 

    • Letters and Other Statements from Third Parties.

     

    Many entrepreneurial endeavors are measured in terms of revenue generation, profitability, valuations, cash flow, or customer adoption.

    • An NIW can be self-petitioned. 

    • An NIW skips the PERM Labor Certification process which saves two years and skips the risky labor market test.

    • The NIW criteria are distinguished from the EB-1A for Extraordinary Ability such that many who don’t qualify for the EB-1A may qualify for the NIW.

    • An NIW approval can be utilized with any employer as long as you continue to work in the same field. This is particularly important for Indian and Chinese nationals who are stuck in lengthy backlogs and may change employers multiple times before their priority date becomes current.

    • An I-140 approval may allow dependents to apply for an Employment Authorization Document (EAD). 

  • File Form I-140, Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services

    Must also include ETA Form 9089 Appendix A from the Department of Labor

     

    The filing fee is $715. You must also include an asylum program fee which is $600 or $300 (< 25 employees) or $0 (non-profit).

     

    USCIS currently adjudicates 80% of cases within 10.5 months

     

    Premium processing is available for NIW petitions. The filing fee is $2,805. USCIS will adjudicate the I-140 within 45 calendar days.

     

    If you are in the U.S. in valid status and the employment based second category is current you may concurrently file your adjustment of status (Form I-485) with your NIW I-140.


    See the visa bulletin for current priority dates.

The Basic E-1 Visa Requirements

  1. Requisite treaty exists;

  2. Individual and/or business possess the nationality of the treaty country;

  3. Activities constitute trade;

  4. Applicant must be coming to the United States solely to engage in substantial trade;

  5. Trade is principally between the United States and the treaty country of the applicant's nationality;

  6. Applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the United States; and

  7. Applicant intends to depart the United States when the E-1 status terminates.

A foreign national with an advanced degree or exceptional ability may be eligible for a green card under the Employment Based Second Preference Category (EB-2). Here's how it works:

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