EB-2 (NIW)

Overview of the EB-2 Visa & National Interest Waiver (NIW)

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The EB-2 visa (2nd Preference) is designed for individuals who possess specialized skills and expertise and offer applicants the opportunity to secure lawful permanent residency (aka Green Card) in the U.S. based on their qualifications and contributions in their respective fields. 

Applying for an EB-2 visa is not a simple task. Our goal with this guide is to help potential visa applicants navigate the complex EB-2 visa application process, eligibility criteria, forms, and supporting documents, as well as a separate section focused on the National Interest Waiver (NIW).

Many individuals I have come across that want to apply for the EB-2 visa are individuals looking for a gateway to permanent residency (Green Card) in the United States. Understanding the EB-2 involves recognizing its two subcategories (Advanced Degree or Exceptional Ability). The question to consider is, “Do my qualifications align with any of these categories?” 

Advanced Degree Professionals is reserved for applicants holding… an advanced degree (a master’s or higher) or its equivalent. For applicants that do not possess a master’s degree or higher, individuals with a bachelor’s degree alongside 5 years of progressive work experience in their respective fields.

Exceptional Ability is reserved for applicants showcasing an exceptional ability in their field. So what exactly does “Exceptional Ability” mean? Basically it means “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” Read more about it HERE.

The prerequisites for the EB-2 Visa vary based on the respective subcategory. The exact eligibility requirements can be found in USCIS’s Policy Manual under Chapter 5: Advanced Degree or Exceptional Ability [USCIS].

Advanced Degree Professionals: Applicants must hold an advanced degree or its equivalent, with the job they are applying for requiring such qualifications. Alternatively, individuals with a bachelor’s degree plus five years of progressive experience may also qualify.

Exceptional Ability: For this category, applicants must satisfy at least 3 of the following criteria, which can be found on the USCIS website HERE

  1. Official academic record showing you have a degree, diploma, certificate, or similar from a college, university, school, or other academic institution related to the area of exceptional ability
  2. Letters from current or former employers documenting at least 10 years of full-time experience in your occupation
  3. A license to practice profession or certification for profession
  4. Evidence you have commanded a salary that demonstrates your exceptional ability
  5. Membership in a professional association(s)
  6. Recognition for achievements and significant contributions in your industry or field by peers, government entities, professional or business organizations
  7. Other comparable evidence of eligibility is also acceptable 

One of the requirements that applies to both Advanced Degree and Exceptional Ability is obtaining a labor certification from a U.S. employer. Labor Certification is an important step in securing an this visa, where the U.S. Department of Labor evaluates the offered position rather than the beneficiary’s qualifications. EB-2 applicants must obtain DOL-approved permanent labor certifications. However, this requirement can be waived through the National Interest Waiver (NIW). 

The National Interest Waiver (NIW) is a way for people to be exempt from the job offer and labor certification requirement because it would be in the best interest of the United States. In order to qualify for this waiver, applicants must still meet the above requirements for their respective categories and also prove their work is of national interest. 

USCIS considers 3 prongs to determine eligibility for the NIW: 

  1. The proposed endeavor has both substantial merit and national importance.
  2. Applicants are well-positioned to advance the proposed endeavor.
  3. It would be beneficial to the U.S. to waive the job offer labor certification requirement. 

The application process necessitates the submission of various supporting documents to establish eligibility. These documents may vary based on the specific subcategory under which the applicant is applying. Essential components include:

For Advanced Degree Professionals: Evidence of advanced degrees (such as transcripts, diplomas, or evaluations of foreign degrees), job offer letters from U.S. employers verifying the requirement for advanced qualifications, and documentation of work experience if applying based on a bachelor’s degree plus five years of experience. 

For Exceptional Ability: Documentation showcasing exceptional ability can include awards, publications, memberships in professional organizations, letters of recommendation, and other evidence highlighting the applicant’s exceptional talents and contributions. 

The EB-2 offers a (not-so-easy) pathway to permanent residency in the U.S. for applicants with advanced degrees or exceptional abilities. Whether you’re a distinguished academic, a pioneering researcher, or an innovator, this employment-based visa provides a gateway to realizing your aspirations in America. 

At Ochoa & Hill Law Group, PLLC, we specialize in immigration law and are committed to guiding you through the intricacies of the EB-2 visa application process. Contact us today to schedule a consultation and embark on your journey towards securing permanent residency in the United States.

To ensure a seamless process, consider consulting with our experienced immigration attorneys at Ochoa & Hill Law Group. Contact us at (713) 984-4823 to schedule a consultation.

Disclaimer: The information provided above is not intended as legal advice. Each immigration case is unique, and individuals should seek personalized legal guidance. 

Frequently Asked Questions

The processing time for an EB-2 visa varies depending on factors such as the current processing times at USCIS and the complexity of the applicant’s case. Generally, it can take anywhere from 12 to 18 months or more.

Yes, EB-2 visa holders can apply for U.S. citizenship after they have held a green card for at least five years and meet all other eligibility requirements for naturalization.

The EB-2 visa is an employment-based immigrant visa category, while the O-1 visa is a non-immigrant visa category reserved for individuals with extraordinary abilities or achievements in their field.

The EB-2 visa is for professionals with advanced degrees or exceptional abilities, while the EB-1 visa is for individuals with extraordinary abilities, outstanding professors and researchers, and multinational executives and managers. Although the terms “Extraordinary Abilities” and “Exceptional Abilities” sounds like they are exactly the same thing, they are not. Each term has its own requisites that differentiates them. Basically, the standard to be considered “Extraordinary” is more stringent compared to “Exceptional”.

Yes, you can include your spouse and unmarried children under the age of 21 in your EB-2 visa application as dependents.

Yes, you can apply for the EB-2 visa if you are already in the United States on another visa, as long as you meet all EB-2 program requirements and are admissible to the United States.

Yes, you can apply for the EB-2 visa with a degree from a foreign university, as long as the degree is equivalent to a master’s degree or higher from a U.S. university and meets all other EB-2 program requirements.

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