The EB-2 NIW visa classification has been specifically devised for individuals with exceptional ability or those holding a U.S. advanced degree or its foreign equivalent. Generally, EB-2 applicants are required to secure a job with a U.S. employer who is willing to go through the burdensome, tedious, and costly process of labor certification. However, thanks to the EB-2 NIW category, foreign nationals who either have exceptional ability in sciences, art, business, education, or athletics, or hold a U.S. advanced degree or its foreign equivalent may self-petition for a U.S. immigrant visa. This creates a realm of possibilities for foreign applicants who are otherwise assumed ineligible for permanent residency status.
For individuals to avail themselves of the EB-2 NIW visa category, they should provide sufficient and relevant evidence in support of their eligibility to forego the job offer and labor certification requirements. It should be noted that the waiver of the job offer and labor certification requirements does not imply that foreign nationals are exempt from satisfying the EB-2 requirements as the prerequisite of the EB-2 NIW visa category. In fact, it is after fulfilling the EB-2 requirements that foreign nationals’ request for waiver of the job offer and labor certification requirements would be considered.
To maintain the distinction between the EB-2 and NIW requirements, this part addresses the eligibility criteria for each of the foregoing separately.
Foreign nationals should first demonstrate that they qualify under the EB-2 category. In this regard, foreign nationals should fall under one of the following categories:
- Holders of U.S. Advanced Degrees or Its Foreign Equivalent
Holders of U.S. advanced degrees or its foreign equivalent qualify under the EB-2 category. A Master’s or doctorate degree obtained from a U.S. university or its foreign equivalent counts as an advanced degree for EB-2 purposes. USCIS has also devised another alternative for those without an advanced degree. In fact, possessing a U.S. baccalaureate or foreign equivalent degree followed by at least five years of progressive experience in the specialty may also substitute the “advanced degree” requirement.
- Individuals of Exceptional Ability
Individuals may also satisfy the EB-2 requirements by demonstrating that they have exceptional ability in sciences, art, business, education, or athletics. “Exceptional ability” means a degree of expertise significantly above that ordinarily encountered in the specialty.
USCIS looks upon several factors to determine a foreign applicant’s exceptional ability:
- Receipt of a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the foreign applicant’s area of exceptional ability
- 10 years of full-time experience in the foreign applicant’s occupation
- A license to practice profession or certification for the foreign applicant’s profession or occupation
- Evidence documenting that the foreign applicant has commanded high salary or other remuneration for services
- Membership in a professional association(s)
- Recognition for the foreign applicant’s achievements and significant contributions to his/her field by peers, government entities, professional or business organizations
- Any other comparable evidence of eligibility
Note: Three of the foregoing criteria should be met in order to qualify for EB-2 based on exceptional ability.
Once the foreign applicant establishes that he/she qualifies for the EB-2 category, USCIS will review the foreign applicant’s eligibility to forgo the job offer and labor certification requirements due to the fact that granting the waiver would be in the national interest of the United States. USCIS may approve the national interest waiver as a matter of discretion if the following elements are satisfied:
- The foreign national’s proposed endeavor has both substantial merit and national importance;
- The foreign national is well positioned to advance the proposed endeavor; and
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
- The Prospective endeavor’s substantial merit and national importance
In establishing the prospective endeavor’s substantial merit, USCIS considers its practical applications, and whether it translates into substantial benefits for the United States. The prospective endeavor’s substantial merit can be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. Evidence to establish that the beneficiary’s proposed endeavor has substantial merit consists of but is not limited to, a detailed description of the proposed endeavor and why it is of substantial merits.
- National Importance
In determining whether the proposed endeavor has national importance, USCIS takes the potential impact of the endeavor into consideration rather than its geographical breadth. For instance, the employment of U.S. workers made possible through the applicant’s proposed endeavor may have national importance even though the proposed endeavor’s impact is limited to one geographic area of the United States.
Evidence to establish that the applicant’s prospective endeavor has national importance includes but is not limited to the following:
- The endeavor has national or even global implications within a particular field;
- The endeavor has significant potential to employ U.S. workers or has other substantial positive; economic effects, particularly in an economically depressed area;
- The endeavor will broadly enhance societal welfare or cultural or artistic enrichment; and
- The endeavor impacts a matter that a government entity has described as having national importance or is the subject of national initiatives.
(2) Well-positioned to Advance the Proposed Endeavor
Under this prong, the focus is shifted from the prospective endeavor to the foreign applicant who should establish his/her skills, education, and knowledge (documentary evidence includes patents, trademarks, testimonial letters, media report about the applicant’s achievements, and strong citation history, among others), commitment to drive the endeavor forward (documentation reflecting detailed plans may be presented as one of the evidences), and progress towards achieving the prospective endeavor (evidence of grants, for example, may be submitted). The foreign applicant may be well-positioned to advance the prospective endeavor even if there is no certainty that the prospective endeavor will be a success. However, unsubstantiated claims would not meet the burden of proof.
(3) On balance
The third prong requires the foreign applicant to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. USCIS may evaluate factors such as whether, in light of the nature of the foreign national’s qualifications or the proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process; whether the prospective endeavor may lead to the creation of jobs, and whether the applicant is self-employed in a manner that does not adversely impact U.S. workers.
The EB-2 NIW offers several key advantages to foreign applicants which include:
- Current visa: Foreign applicants gaining USCIS’s approval can apply for an immigrant visa or adjustment of status without waiting for their visa to become current. The word “current” implies that no backlog exists in the EB-2 NIW category.
- Waiver of the job offer requirement: Foreign nationals can self-petition and a job offer is not required for NIW eligibility.
- Waiver of the labor certification requirement: The labor certification requirement does not apply to the EB-2 NIW category.
- The foreign applicant’s spouse and children under 21 as derivatives can also gain U.S. permanent residency under the EB-2 NIW category.