EB-2 NIW Visa 

The EB-2 NIW (National Interest Waiver) visa is a type of employment-based visa that allows foreign nationals with advanced degrees or exceptional abilities in the fields of science, arts, or business to apply directly for a Green Card. Each year, 40,000 visas are allocated for this category, along with any unused numbers from the EB-1 category.

The National Interest Waiver (NIW) eliminates the requirement for a labor certification (PERM), which is typically needed to prove that no qualified U.S. worker is available for the position, as well as the requirement for a job offer from a U.S. employer. However, to qualify for this waiver, the applicant must still meet the standard eligibility criteria for the EB-2 visa.

EB-2 Visa Criteria

To prove eligibility for this visa, the applicant must submit academic records demonstrating one of the following:

• A master's degree or higher from an accredited U.S. institution or its foreign equivalent; or
• A bachelor's degree from an accredited U.S. institution or its foreign equivalent, plus at least five years of progressive work experience in the field after obtaining the degree.

In addition to meeting the educational requirements, the applicant must demonstrate exceptional abilities in science, arts, or business and show that their work will substantially benefit the U.S. national economy, cultural or educational interests, or welfare. To prove exceptional ability, the applicant must meet at least three of the following six criteria:

• Documentation of a degree, diploma, certificate, or similar award from a college, university, or other institution of learning relating to the area of exceptional ability;
• Written evidence from current or former employers demonstrating at least 10 years of full-time experience in the applicant's field;
• A license or certification required to practice the profession or occupation;
• Evidence that the applicant has commanded a salary or remuneration for services that demonstrates exceptional ability, compared to others in the field;
• Membership in professional associations;
• Recognition for achievements and significant contributions to the field by peers, government entities, or professional or business organizations.

National Interest Waiver (NIW) Criteria

The criteria listed above outline the eligibility for the EB-2 visa. While holding an advanced degree or having exceptional abilities in science, arts, or business qualifies an individual for the EB-2 visa, it does not automatically guarantee the approval of a National Interest Waiver (NIW). An applicant seeking the waiver must not only be eligible for the EB-2 visa but also demonstrate that granting them the waiver is in the national interest of the United States.

U.S. immigration law requires all applicants for visas that demand extraordinary ability to show that their work will significantly contribute to the national economy, cultural or educational interests, or overall well-being of the U.S. Even if extraordinary ability is proven, additional evidence is required to justify the NIW, focusing on the "national interest."

The term "national interest" is not specifically defined in U.S. immigration law or regulations. Therefore, the U.S. Citizenship and Immigration Services (USCIS) assesses each case individually to determine whether the national interest requirement is met. The burden of proof lies on the applicant to demonstrate that their presence in the U.S. serves the country's national interests. This determination is based on three key criteria:

• The applicant's proposed endeavor must have substantial merit and national importance.
• The applicant must be well-positioned to advance the proposed endeavor.
• On balance, it must be beneficial to the United States to waive the job offer and labor certification requirements.

Common characteristics of successful NIW applications include the following:

• The applicant's work will improve the U.S. economy.
• It will improve wages and working conditions for U.S. workers.
• It will provide more affordable housing for young, elderly, or low-income residents.
• It will result in the development of the field and lead to more efficient use of national resources.
• The applicant's work has been requested by a relevant U.S. government agency.

“National Importance” Criterion

When assessing the first criterion of national importance, USCIS considers the potential impact of the proposed endeavor put forth by the applicant. This impact is evaluated broadly. For example, a doctor working in a hospital might seem to benefit only the local area served by that hospital. However, if the doctor can demonstrate national-level benefits through the dissemination of research publications or the implementation of new procedures in other hospitals, they can satisfy this criterion. Scientific research often shows significant national benefits, as advancements in specific fields can be linked to national objectives like healthcare or safety.

Conversely, professionals in more specific fields, such as musicians, visual artists, economists, and web developers, can also meet the relevant criterion through:

• Evidence of national or global impacts of the proposed endeavor in a specific field.
• The potential for employing U.S. workers and generating economic benefits.
• Contributions to societal welfare and the provision of cultural or artistic enrichment.
• Designation by a government entity as having national significance.

“Well-Positioned” Criterion

The second criterion, regarding being well-positioned, involves USCIS evaluating the foreign individual's education, skills, knowledge, and relevant achievements; whether they have a model or plan for future activities; progress made towards implementing the proposed endeavor; and the interest of potential clients, users, investors, or other relevant parties.

Although the applicant cannot guarantee future success of the proposed endeavor, USCIS may determine that the individual is well-positioned to advance it, provided this claim is supported by adequate and persuasive evidence. Examples of such evidence include:

• Detailed expert letters indicating government interest in the applicant's research.
• Documentation showing the applicant's significant role in projects funded by government grants.
• Evidence of the applicant's educational background, skills, knowledge, expertise, and other significant accomplishments in their field (such as memberships or media reports).

Examples of supporting documentation include:

• Publications and citations of those publications.
• Recommendation letters (letters from independent individuals not previously worked with carry a higher burden of proof).
• Funding and grants received from the U.S. government.
• Memberships in organizations requiring extraordinary achievements for entry.
• National or international awards.
• News articles published by recognized media outlets regarding the individual.
• Intellectual property such as patents and licenses.
• Requests for the individual's work from external organizations and researchers.

When gathering this evidence, it may be helpful to consider the criteria for EB1A and EB2 visas. Although the legal standards and evidentiary burdens for EB1A are stricter, they can provide insight into the types of evidence that can help establish the significance of the individual's past achievements or the importance of the proposed endeavor.

"Benefit to the United States" Criterion

To determine whether this requirement is met, USCIS evaluates the following factors:

• Eligibility for Job Offer or Labor Certification: The applicant's qualifications or proposed endeavor must align with receiving a job offer or obtaining a labor certification. For instance, the labor certification process assesses whether there is a qualified U.S. worker for the role. If a foreign worker possesses unique knowledge or skills that exceed the criteria set forth in the certification, this could prevent hiring a qualified U.S. candidate.
• Potential Benefits Despite Availability of U.S. Workers: Even if other qualified U.S. workers are available, USCIS assesses whether the United States would still benefit from the applicant's contributions.
• Urgency of Contributions: The applicant's contributions must be sufficiently urgent from a national interest perspective.
• Job Creation Potential: The proposed endeavor should demonstrate potential for creating new jobs in the U.S.

Conclusion

The EB2 NIW (National Interest Waiver) Visa is advantageous for foreign nationals with high educational levels or extraordinary abilities in specific fields, as it offers the opportunity to obtain permanent residency (Green Card) in the U.S. without the need for labor certification or a job offer. This visa allows applicants to bring projects that can contribute to the national interest of the United States. To succeed, it is essential for applicants to clearly demonstrate how their proposed endeavors will benefit society and the economy. The EB2 NIW visa presents a significant opportunity for international talents to be recognized in the U.S., resulting in mutual benefits for both individuals and the country.