EB-2 NIW: National Interest Waiver
The EB-2 National Interest Waiver (NIW) is a subcategory of the second-preference employment-based immigrant visa (EB-2) that allows foreign nationals to self-petition for lawful permanent residence (green card) in the United States without the need for employer sponsorship or a Department of Labor (DOL) PERM labor certification, if they can demonstrate that their proposed work is in the national interest of the United States.
Eligibility Requirements
To qualify for the EB-2 NIW, an applicant must first meet the general eligibility criteria for the EB-2 visa category by demonstrating either of the following:
Advanced Degree: The applicant must possess a U.S. advanced degree (master’s or higher) or a foreign equivalent, or a U.S. bachelor’s degree plus at least five years of progressive post-baccalaureate experience in the field.
Exceptional Ability: The applicant must demonstrate a degree of expertise significantly above that ordinarily encountered in their profession, supported by at least three types of evidence (e.g., academic records, awards, membership in professional associations, recognition by peers or government entities, etc.).
Once EB-2 eligibility is established, the applicant must meet additional criteria for a National Interest Waiver, based on a legal framework outlined in the Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), which replaced the older NYSDOT standard.
The Three-Prong Dhanasar Test
To qualify for a National Interest Waiver, the applicant must demonstrate:
Substantial Merit and National Importance of the Proposed Endeavor
The applicant’s proposed work must have clear value in areas such as public health, education, science, technology, business, entrepreneurship, energy, cultural enrichment, or environmental protection. The benefit can be national in scope or have broader implications that extend beyond the local level.Well-Positioned to Advance the Proposed Endeavor
The applicant must show they have the qualifications, experience, education, skills, past accomplishments, and a plan to succeed in the proposed field. Evidence may include letters of recommendation, publications, patents, media coverage, previous employment history, and contracts or business plans.Balancing Test: National Interest Warrants a Waiver of the Job Offer and Labor Certification
The applicant must demonstrate that, on balance, it would benefit the United States to waive the usual requirement of a job offer and labor certification. This means that requiring the applicant to go through the standard labor certification process would hinder U.S. interests, such as slowing the applicant’s contribution to critical public needs or innovative fields.
Advantages of the EB-2 NIW
No Employer Sponsorship Required: Applicants can self-petition without a job offer, making it ideal for entrepreneurs, independent researchers, consultants, and individuals working on projects not tied to a single employer.
No PERM Labor Certification Needed: This bypasses the lengthy and restrictive process of testing the U.S. labor market.
Pathway to Green Card: Once the I-140 petition is approved and a visa number becomes available (immediately current for many countries), the applicant may file for adjustment of status (Form I-485) if already in the U.S., or consular processing if abroad.
Flexibility and Mobility: As the petition is not tied to an employer or specific job offer, the applicant retains greater freedom to change employers, start businesses, or pursue academic research.
Who Should Consider the NIW?
The EB-2 NIW is particularly suited for:
Scientists, researchers, and scholars conducting high-impact studies
Physicians providing medical services in underserved areas (including those in HHS-designated shortage areas)
Entrepreneurs and startup founders pursuing innovative ventures
Engineers, data scientists, cybersecurity experts, and professionals in emerging technologies
Public health experts, educators, and social entrepreneurs
Filing Process
File Form I-140 (Immigrant Petition for Alien Worker) with evidence supporting both EB-2 eligibility and the national interest waiver criteria.
Concurrent Filing (Optional): If the priority date is current, the applicant may file Form I-485 (Adjustment of Status) concurrently.
EAD and Travel: Applicants who file I-485 may also file for an Employment Authorization Document (Form I-765) and Advance Parole (Form I-131) while their green card is pending.
Processing Time and Premium Processing
As of 2023, premium processing is available for EB-2 NIW petitions (Form I-140) for an additional fee, reducing wait time to 45 calendar days.
Without premium processing, average adjudication time can range from 6 to 15 months depending on the service center.