National Interest Waiver Green Card Questions and Answers (Q&A)

The EB2 NIW is a special pathway for individuals with an advanced degree to self-petition for a green card (US permanent residency) if they can show their work in the US serves the national interest. The EB2 NIW is an attractive option for many reasons, including the fact that a US job offer and employer sponsorship is not required.

With the new administration we have seen several significant changes to the program, including special guidance for STEM and entrepreneur applicants and that premium processing is now available or EB2 NIW applicants, who will receive a response within 45 days if they opt in. This post will answer some of the most commonly found questions about the NIW.

The first step is submitting the I-140 petition to USCIS, which determines eligibility for the green card under the EB2 NIW category. This is the most substantive part of the preparation process, often involving the submission of hundreds of pages of material to persuade the officer why the applicant qualifies for an NIW. Once the I-140 is approved, the next step is to apply for a green card either through an immigrant visa through a US consulate abroad or through an adjustment of status application (I-485) from within the US if the applicant is already in the US in a different status.

The entire process from initial I-140 petition to green card in hand can take 1-2 years and sometimes even longer. Applicants can get an answer to the I-140 within 45 days and this has shortened the timeline a bit. However, since November 2022 the EB2 category has seen a retrogression in priority dates so applicants have not been able to submit their green card applications for many months even after their I-140 were approved.

The NIW is available for advanced degree professionals, who have a Masters degree or above, such as a Ph.D., MBA, JD, MD. A bachelor’s degree and over 5 years of progressive work experience (which means increasingly senior positions and duties) is considered the equivalent of a Masters degree so you can qualify. The proposed endeavor must reasonably require such credentials. For applicants who do not have an advanced degree, there is an alternative way of meeting this criteria through showing “exceptional ability” in a particular field but this is less common.

Yes, you can apply for the NIW from outside the United States relying on your experience and knowledge gained outside the US. You do need to show your plans to work in the United States and that your work will advance the US’s national interests. It may be helpful to strengthen your case to obtain evidence of U.S. industry actors’ interest in your project in the form of letters of intent or contracts. If you are not living in the United States and you are approved for an NIW, you can apply at your country’s US consulate for an immigrant visa based on the approval.

To demonstrate that your work is in the national interest such that you qualify for an NIW, you must show that your work has “national importance” by offering significant benefits to the US economy, society, or your particular field, such as by disseminating novel approaches, technology, innovations, or insights to other experts in your field.  In addition, you need to show you have unique knowledge, know-how, and experience that positions you well to engage in this work.

An applicant needs to include evidence they have an advanced degree, such as copies of their diploma, transcript, and US education equivalency assessment if it’s a foreign degree. An applicant will also include expert advisory letters that explain why the applicant’s work will offer broad contributions to the U.S.’s national priorities and showcase the applicant’s achievements. Other evidence of the applicant’s contributions to the field will be included, such as awards, patents, publications, work product, media features. If the applicant is an entrepreneur, a business plan will typically be included and any evidence of interest by industry actors on the entrepreneur’s project, such as investment, incubator admissions, and letters of intent.

An entrepreneur can qualify for an NIW by showing that their business project will serve U.S. national interests, for example by introducing innovations or sparking progress within the industry or society and advance national priorities. Substantial positive economic impacts, especially in an economically depressed area, can qualify as having national importance. Entrepreneurs can rely on special forms of evidence to support the merits of their case, such as evidence of investment, incubator or accelerator admission, intellectual property, receipt of grants from government agencies, etc.

It is possible to appeal a denial of an NIW through the Administrative Appeals Office (AAO). You could also file a motion to reopen or motion to reconsider depending on the specific circumstances of your case. It is worth noting that the vast majority of AAO appeals are dismissed because the AAO tends to defer to USCIS officers’ assessments as long as they are supported by reasonable explanations and interpret the law with high standards. Depending on your case, it may be a better to file a new NIW petition. It’s important to consult the advice of an experienced attorney for the best course of action in your particular case.

Related posts:

https://legalservicesincorporated.com/immigration/recent-trends-in-eb-2-niw-national-interest-waiver-adjudication/

https://legalservicesincorporated.com/immigration/national-interest-waiver/niw-processing-times-and-steps-overview-in-2023-how-long-does-it-take-from-petition-to-green-card/