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EB-2 National Interest Waiver Visa

Foreign nationals who are highly skilled or have advanced degrees can pursue a green card in the United States through various options. One of the most attractive routes in recent years has been the EB-2 NIW visa, which is a second preference employment-based visa that comes with a national interest waiver. Although this method has existed for a while, it was challenging to qualify for due to strict eligibility criteria until the U.S. Supreme Court eased the requirements in 2016. The main benefit of the EB-2 NIW is that it provides a quicker pathway to permanent residency, bypassing the need for employer sponsorship or a lengthy labor certification process.

EB-2 Visas: An Overview

The EB-2 visas are available to two categories of applicants: (1) those who hold an advanced degree (or its equivalent) and are members of professions; and (2) those who can demonstrate exceptional ability in fields such as sciences, arts, medicine, business, or athletics, and are likely to substantially benefit the national economy, education, culture, or welfare of the United States. The first group of applicants must be seeking employment in the U.S. that requires an advanced degree and must also possess the necessary qualifications for the job, which may include a bachelor’s degree and five years of experience in the field. Applicants in the second group must prove that their abilities are significantly above the norm.

Understanding the National Interest Waiver

The standard EB-2 visa process requires applicants to go through the Labor Certification process, which is also known as the Program Electronic Review Management (PERM) process. This process is mandatory under the United States Department of Labor, and involves conducting a market test to demonstrate that no qualified American workers are available for the job in question. The Labor Certification process is a time-consuming and lengthy procedure that involves filing a petition with the state agency, conducting a recruitment campaign, and submitting the campaign results to the state agency. The entire process can take anywhere from six months to three years.

Alternatively, an individual can request a waiver of the Labor Certification requirement if it is in the best interests of the United States to do so. This is referred to as the National Interest Waiver (NIW). If an applicant can demonstrate that it is in the national interest, both the job offer and Labor Certification requirements will be waived, and the individual can petition the USCIS for an EB-2 visa directly, without the need for an employer to sponsor the application.

There are multiple key differences between traditional EB-2 cases and EB-2 NIW cases. In an EB-2 case, an employer must file the petition on behalf of the foreign national, whereas in an EB-2 NIW case, the foreign national can file the petition themselves or have an employer file on their behalf. Additionally, the Labor Certification process is waived in EB-2 NIW cases, and the job offer requirement is also waived. However, it is generally more difficult to secure approval for an EB-2 NIW visa than for an EB-2 visa, although the chances of success can be improved by engaging the services of a skilled and experienced EB-2 NIW attorney.

The Three Prong Test for a National Interest Waiver

In 2016, the USCIS Administrative Appeals Office made changes to the eligibility criteria for NIW visas under the EB-2 category. This was done through a ruling known as Matter of Dhanasar, which established a three-pronged test that applicants must pass to qualify for the visa. The first criterion is that the proposed endeavor of the applicant must have significant merit and national importance. Secondly, the applicant must demonstrate that they are well-suited to advance their proposed endeavor. Finally, the applicant must prove that waiving the job offer and labor certification requirements of the EB-2 category would benefit the United States.

To determine whether a proposed endeavor is substantial and of national importance, USCIS does not restrict applications to specific fields such as science or technology. All foreign nationals, regardless of their profession, may apply as long as their endeavors would benefit the United States. USCIS evaluates this criterion by assessing the potential impact of the applicant’s proposed endeavor and examining the significance of the problems that the applicant may address through it.

The second criterion under the Dhanasar standards involves the evaluation of the applicant’s qualifications and ability to advance their proposed endeavor. USCIS considers various factors to determine whether the applicant is well-positioned for success, including their education, skills, knowledge, and track record of achievements. Additionally, USCIS may also examine the applicant’s future plans, progress made towards achieving their goals, and the interest of potential investors, customers, or users. While the applicant does not need to prove that their endeavor will ultimately succeed, they must demonstrate that they have a strong likelihood of success by presenting a well-developed plan, such as a business plan with financial projections.

Thirdly, USCIS will assess whether the contributions of the applicant would benefit the United States, even if there are qualified American workers available, and whether the national interest is important enough to bypass the labor certification process. USCIS adjudicators must weigh the national interest in requiring labor certifications to protect American workers against the benefits that the applicant could bring to the United States. Factors that could be considered include whether it is impractical to obtain a job offer or labor certification due to the applicant’s qualifications or proposed endeavor, whether the United States would benefit from the applicant’s contributions, and whether the national interest in the applicant’s contributions is “sufficiently urgent” to justify bypassing a labor certification. Applicants can often demonstrate this by showing that they possess unique and exceptional qualifications.

In addition to fulflling the three-prong test, an applicant must also prove that they belong to the professions that hold advanced degrees, or they are individuals with exceptional abilities in sciences, arts, or business.

Work with an Immigration Attorney from Azure Brio Associates

Azure Brio Associates offers comprehensive legal services for those seeking to obtain an EB2 Visa, whether you are an employer looking to hire a highly qualified professional or an individual with extraordinary ability seeking to self-petition. Our Immigration Attorneys have extensive knowledge and experience with the EB2 Visa, including the National Interest Waiver, and approach our work with empathy and understanding, drawing on personal experience as immigrants and entrepreneurs. We will collaborate closely with you to create a strong petition that meets the EB2 requirements and maximizes your chances of approval. To learn more about our services, please contact us at+ 1 (443) 686 8365, + 57 (315) 359-6683  or email us at

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