EB-2 NIW Case Illustration
Amir holds an advanced degree in artificial intelligence and has recently participated in one of the top accelerator programs in Silicon Valley. Since then, he has secured access to the venture capital and resources necessary to launch his startup in the United States. Since Amir does not have a corporate sponsor, he must identify a Green Card category that allows him to self-petition and bypass the need for employment and labor certification. After speaking with his attorney, Amir decides to pursue the EB-2 NIW Green Card due to its benefits and advantages over other visa types.
The EB-2 NIW category works well for Individuals with “exceptional ability” in the sciences, arts, or business. Some great benefits of this green card category are that you can skip the entire PERM labor certification process with the U.S. Department of Labor, and you can also self-petition. This means you can file without a company sponsoring! Since there is no PERM, you do not need a U.S. employer to embark on the lengthy investment of obtaining a labor certification by testing and proving to the U.S. government that there are no qualified U.S. workers. Instead, you need to show that permanently employing the exceptional individual would greatly benefit the U.S.!
What is a National Interest Waiver?
Normally, the EB-2 Green Card requires that an employer acts as a sponsor, offering the applicant a permanent role with the company and testing the labor market through the PERM process to see if qualified U.S. workers are available instead. The National Interest Waiver, however, allows a worker to bypass the need for labor certification, proving that their work will benefit the United States economy, education system, healthcare, or some other aspect of society.
With the NIW, the United States Citizenship and Immigration Services acknowledges that an individual’s work is so critical to the country’s interests that there is no need to prioritize a U.S. worker. In turn, the requirements of employer sponsorship and labor certification are waived. In Matter of Dhanasar, the Administrative Appeals Office has set forth a three-prong test for deciding whether an NIW should be granted:
- First prong: The worker’s proposed endeavor has both substantial merit and national importance
- Second prong: The worker is well positioned to advance their proposed endeavor
- Third prong: On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements
For additional context, please check out this related video on our YouTube channel.
Who Can Benefit from the National Interest Waiver?
At Alcorn Immigration Law, we have decades of experience working with applicants to prove that their work meets the Three Prong Test and helping them obtain the EB-2 NIW Green Card.
This Green Card subcategory is an excellent option for startup founders who are committed to growing their company in the United States, as it waives the requirement for an employer sponsor. It’s also great for scientists, researchers, inventors, artists, and other entrepreneurs joining teams or seeking self-employment. The EB-2 NIW provides a valuable immigration avenue for individuals who wish to petition based on their future contributions to the United States as opposed to their past achievements demonstrating extraordinary ability.
Generally, it is easier for individuals to qualify for the EB-2 NIW green card compared to the EB-1A green card because it is a second preference option and has less stringent requirements for past accomplishments. Securing a Green Card through the EB-2 NIW can take a great deal of time, however, if you were born in India, China, or another country subject to large backlogs on the Visa Bulletin. In these cases, another visa option like the EB-1 may in fact make more sense, unless you have an older Priority Date.
Premium processing is now available for EB-2 NIW petitions. Opting in for premium processing for an EB-2 NIW guarantees a USCIS decision within 45 calendar days.
What’s the Process for Obtaining an EB-2 NIW?
If the priority date for the EB-2 category and country of birth is current, Form I-140, the green card petition, and Form I-485, the adjustment of status, can be filed at the same time to U.S. Citizenship and Immigration Services. Otherwise, the I-140 must be filed first. As of the time of this writing, the I-140 for an EB-2 NIW green card cannot be filed via premium processing. The processing time can vary. Check out the USCIS Case Processing Times page for the most current estimates. Once the I-140 is approved and if your priority date is current, you can file for adjustment of status I-485. Family members can also file for adjustment of the process as beneficiaries.
USCIS may request more information, evidence, or an interview with the EB-2 NIW candidate. At an interview, you may be fingerprinted, photographed, or asked for your signature to verify your identity or to update background and security checks. USCIS will notify you in writing of its decision.
You can self-sponsor for the EB-2 National Interest Waiver (NIW) or you can have an employer sponsor you. In either case, a Form I-140 petition must be filed along with the evidence of your qualifications.
There is a range of documentation required for the EB-2 NIW Green Card. To craft the strongest case possible, it is necessary to provide evidence of all relevant accomplishments in the field. When preparing your application, the following paperwork may be required:
- Form I-140 Petition
- Copy of passport and evidence of current nonimmigrant visa status (if applicable)
- Highest advanced degree along with academic records and transcripts. If your highest degree is from a foreign institution, include a degree equivalency evaluation
- Evidence that you will continue work in the same field such as a business plan, offer letter, or other evidence relevant to your work
- Recommendation letters from experts in the field with their CVs
- Copy of your CV
- Your research publications, and evidence of peer review if applicable
- Proof of commercial usage of work
- Additional evidence of other accomplishments as applicable to your field
How to Select the Best EB-2 NIW Green Card Lawyer for Your Case
Given the exhaustive eligibility requirements and legal complexities associated with these cases, many applicants look to specialized EB-2 NIW Green Card lawyers for assistance. Selecting the best legal team for your case is essential, and it can be helpful to bear in mind the following considerations during your initial consultation with attorneys:
- Is the attorney team responsive? Do they answer your questions in a timely manner?
- Are they familiar with the business and scientific background of the case?
- Have they worked with other founders in your industry?
- Do they work with integrity and candidly discuss the potential challenges of your case?
Am I eligible?
If you have at least a master’s or higher degree or equivalent experience in your field, you can skip this step. If you don’t, you can prove you are a person of exceptional ability by showing at least three of the following:
- Academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution relating to your area of exceptional ability
- Letters documenting at least 10 years of full-time experience in your field
- License to practice your profession or certification for your profession
- You have commanded a salary or other remuneration for services that demonstrates your exceptional ability
- Membership in a professional association(s) that require an invitation or special selection process
- Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
- Other comparable evidence of eligibility
In addition to the above criteria, National Interest Waiver applicants need to also show:
- The work has both substantial merit and national importance—not just geographical importance, but in its significance and prospective impact. Evidence may include a letter from you or your company or employer describing the job; letters from experts in the field attesting to the importance of your work; articles or other published media discussing you or the company’s work; contracts, agreements or licenses showing the scope and impact.
- You will advance the company’s work. Evidence may include your education, skills, knowledge, record of success, past progress, future plans and interest of customers, users, investors, and others.
- Waiving the labor certification requirement would benefit the U.S. Given your qualifications and the work, the U.S. would benefit even if Americans could do the work or with an urgent national interest. Evidence may include copies of published articles recognizing your achievements; contracts, patents, grants, or licenses showing how your work is being implemented by others.
Immigration Law for Tech Startups
The goal of our practice is to provide the information necessary to help empower rapidly-scaling tech companies and highly-motivated entrepreneurs from around the globe to hire the world’s best and brightest talent. We started the Immigration Law for Tech Startups podcast to allow founders, startups and aspiring immigrants to sit in on informative conversations that spark new ideas and invigorate their company’s growth. With new episodes weekly, consider listening on your preferred streaming platform today.
The Alcorn Method
The Alcorn Method is a proven four-step approach that we utilize to secure consistent approval for our EB-2 NIW clients. When you work with our team of attorneys, you can look forward to the following experience:
- Strategize: Listening to your goals and expectations, we will offer the most effective immigration strategy for your unique needs.
- Prepare: Putting the strategy into action, we work with you to compile all necessary documentation according to the rules and regulations of the United States Citizenship and Immigration Services.
- File: Error-free filing is critical to the success of your petition. We will review and file your application, while also providing guidance and support during the interview process.
- Win: While of course, we can make no guarantees, by far the most satisfying part of the process is securing approval for your Green Card and scaling your company in the United States.
Alcorn Immigration Law was established to transcend borders, expand opportunity, and connect the world. We are passionate about advocating for startup founders and innovative entrepreneurs from all corners of the globe. Through our dedication to freedom and economic opportunity and our unwavering commitment to excellence, we have won thousands of cases for our clients. We are inspired by our clients whose work is in the national interest and changing the world. To learn more about how we can help, consider speaking with our team of experienced EB-2 NIW Green Card attorneys in our Silicon Valley, CA, or New York, NY offices at +1(855) 546-0015 today.