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EB-2 NIW Visa

Overview of the EB2 National Interest Waiver

To obtain lawful permanent resident status in an employment-based category, foreign nationals typically need sponsorship from a U.S. employer. However, an exception is the National Interest Waiver (NIW) within the Employment-Based Second Preference (EB2) category. When granted, the NIW removes the requirement for a job offer and the need for the U.S. employer to complete the labor certification (PERM) process with the U.S. Department of Labor (DOL) to prove there are no qualified U.S. workers available.

EB2 NIW Eligibility Determination: To qualify for an EB2 NIW, applicants must undergo a two-step evaluation. First, they must meet the criteria for the EB2 preference category. Second, they must prove that granting the waiver is in the national interest of the United States.


Qualifying for the EB2 Preference Category:The EB2 category is designated for foreign workers who either have advanced degrees or demonstrate exceptional ability in the sciences, arts, or business. An advanced degree is defined by USCIS as a U.S. professional or academic degree (or its foreign equivalent) beyond a bachelor's degree. Alternatively, a bachelor's degree combined with five years of progressively responsible work experience can be considered equivalent to an advanced degree. Exceptional ability requires showing expertise significantly above the norm in the individual’s field, meeting at least three of the following six criteria:

  • Evidence of significant contributions to the field
  • Membership in professional associations that require outstanding achievements.
  • Published material about the applicant's work in major media.
  • Participation as a judge of others' work in the field.
  • Significant contributions to the field through research or other work.
  • Authorship of scholarly articles in professional or major media.

Demonstrating National Interest: If the applicant meets the EB2 criteria, USCIS will then evaluate whether waiving the PERM process is in the national interest of the U.S. Using the three-prong test established in the "Matter of Dhanasar" decision, the applicant must show that the proposed endeavor has substantial merit and national importance, they are well-positioned to advance the endeavor, and that overall, bypassing the job offer and labor certification requirements will benefit the United States.

Prong Details:

1. Substantial Merit and National Importance: Applicants must clearly describe their proposed endeavor and demonstrate its significance and national relevance. This involves providing evidence of specific projects or goals within their field that have substantial merit and are of national importance.


2. Foreign National’s Position to Advance the Endeavor: Applicants should highlight their qualifications, including education, skills, prior accomplishments, and developed plans. They must also show evidence of progress and support from external sources for their endeavor, proving they are well-positioned to advance it.


3. United States Benefit from Waiving the PERM Process: Applicants need to demonstrate that waiving the PERM process benefits the U.S. more than maintaining the current system. This includes showing that the benefits of the endeavor outweigh the government's interest in protecting U.S. workers, proving the PERM process is impractical in this case, and underscoring any urgent national interest implications.


Special Consideration for STEM Petitioners: For those in STEM fields, USCIS offers additional guidance on applying the Dhanasar framework. STEM endeavors, especially those contributing to U.S. national security or receiving support from U.S. government agencies, may receive extra consideration.


In summary, the NIW provides an appealing option for foreign nationals by eliminating the need for employer sponsorship. However, it remains under the EB2 category and does not necessarily expedite the green card process. Those with questions about NIW qualifications are advised to consult with a Dyprocs attorney for personalized guidance.