EB-2 National Interest Waiver (NIW)
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The EB-2 National Interest Waiver is a U.S. green card route that waives the usual job offer and labor certification when that is in the national interest. A person may file for themselves. They must first qualify for the EB-2 category, and then show that their proposed endeavor meets the three-part test USCIS applies under Matter of Dhanasar.
Step one: qualify for EB-2
- an advanced degree: a U.S. degree above a bachelor's or its foreign equivalent, or a bachelor's degree followed by at least five years of progressive experience in the specialty (8 C.F.R. § 204.5(k)(2)); or
- exceptional ability in the sciences, arts or business: a level of skill significantly above that ordinarily encountered, shown by at least three of six types of evidence such as a degree, ten years of experience, a license, a high salary, memberships or recognition (8 C.F.R. § 204.5(k)(3)(ii)).
Step two: the Dhanasar test
Under Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), USCIS may grant the waiver if:
- the proposed endeavor has both substantial merit and national importance;
- the person is well positioned to advance the proposed endeavor; and
- on balance, it would benefit the United States to waive the requirements of a job offer and labor certification.
The endeavor is what the person plans to do in the United States, described specifically. Evidence of the person's education, record, plans and progress, and interest from others, is typically used for the second part.
How the process generally works
- File Form I-140 with the evidence for both steps. Premium processing is available for an additional government fee.
- When the I-140 is approved and the priority date is current under the Visa Bulletin, apply for the green card: Form I-485 in the United States or an immigrant visa abroad.
- Waiting times depend on the country of birth and change each month.
Questions and answers
Do I need a job offer for the NIW?
No. The waiver removes the job offer and labor certification requirements; the person files for themselves.
Does my field have to be science or technology?
No. The endeavor can be in many fields, including business, education, health and the arts, as long as it has substantial merit and national importance.
What does 'well positioned' mean?
USCIS looks at the person's education, skills, record of success, plans, progress so far and the interest of others, such as investors, users or partners.
Sources
- Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)
- 8 C.F.R. § 204.5(k) — second preference (eCFR)
- USCIS — Employment-based immigration: second preference EB-2
- U.S. Department of State — Visa Bulletin
Related categories
- EB-1AGreen card — extraordinary ability
- EB-3Green card — skilled workers, professionals & other workers
- O-1AExtraordinary ability — sciences, business, education, athletics
This page is general information about U.S. immigration law, not legal advice. Requirements and procedures change, and whether a category fits depends on the facts of each case. Government filing fees are separate and are set by the agencies.