Los Angeles EB-2 Attorney
What Is the EB-2 National Interest Waiver (NIW)?
For foreign nationals who are highly skilled or who hold advanced degrees, there are several options for pursuing a green card in the United States. One of the more desirable methods over the few years has become a process known as the EB-2 NIW, the employment-based second preference visa with a national interest waiver. Although this method of obtaining a green card had been around for many years the criteria required to prove eligibility made it exceptionally difficult to qualify until late 2016 when the U.S. Supreme Court reset the threshold for eligibility, making it much easier for foreign nationals to qualify. The main advantage of the EB-2 NIW is that it offers a relatively swift route to permanent U.S. residency. Applicants can obtain residency without the sponsorship of an employer and without having to undergo the cumbersome and lengthy labor certification process.
To qualify for an EB-2 NIW Green Card, you must pass the General EB-2 Eligibility Test and the National Interest Waiver Test.
Step 1: The General EB-2 Eligibility Test
- You can pass the General EB-2 Eligibility Test by meeting 1 of the following 2 criteria:
- You have an advanced degree (Master’s or Ph.D. Degree), or its equivalent (Bachelor’s Degree and 5 years of experience); or
- You have demonstrated exceptional ability in your field.
Most NIW Green Card applicants easily pass the General EB-2 Eligibility Test by having an advanced degree or its equivalent.
Step 2: The National Interest Waiver Test
- After passing the General EB-2 Eligibility Test, you must also satisfy all 3 elements of the National Interest Waiver test, which are:
- Your proposed work has both substantial merit and national importance;
- You are well-positioned to advance your proposed work; and
When balancing all the factors, it would be in the national interest of the U.S. to grant you a waiver of the normal job and labor certification requirements.
This National Interest Waiver test was set out in the 2016 Administrative Appeals Office (AAO) precedent decision called Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), which established a new framework for evaluating NIW Green Card applications.
What is the NIW Green Card Application Process?
To obtain an NIW Green Card, you must file and receive approval of, an I-140 Immigrant Petition and an I-485 Adjustment of Status Application. There are two application filing strategies available, Concurrent Filing or Separate Filing.
Concurrent Filing: If you have a strong NIW profile, you can choose to file your I-140 Immigrant Petition and I-485 Adjustment of Status Application together (also called “concurrent filing”).
Note: Your EB-2 priority date must be current to file your I-485 Adjustment of Status Application together with your NIW I-140. Thus, if you were born in India or China, you cannot do a concurrent filing since EB-2 priority dates for India and China typically are not current in the U.S. Department of State’s Visa Bulletin. Rather, you must wait for your EB-2 priority date to become current before you can file your I-485 Adjustment of Status Application
Separate Filing: If there is some uncertainty regarding the strength of your NIW profile, you can choose to file your NIW I-140 Immigrant Petition first, and then once it is approved, you can file your I-485 Adjustment of Status Application (assuming your EB-2 priority date is current).
What are the Main Advantages of Applying for an NIW Green Card?
Employer Sponsorship is Not Required: You can file an NIW Green Card application independently (sometimes called a “self-petition”) without sponsorship from your employer.
A Specific Offer of Employment is Not Required: You can file an NIW Green Card application even if you do not have a job offer from a U.S. employer.
PERM Labor Certification is Not Required: Unlike most other Employment-Based Green Card categories, you do not need to go through the PERM Labor Certification process to show a shortage of U.S. workers in the labor market for your occupation to be eligible to file an NIW Green Card application.
Less Strict Eligibility Criteria as Compared to EB-1A: Compared to the EB-1A Green Card eligibility requirements, which require you to present compelling documentation satisfying 3 of the 10 “extraordinary ability” criteria, the NIW Green Card eligibility requirements are less burdensome. As a result, USCIS approval rates for NIW Green Card applications are significantly higher than EB-1A Green Card applications.
I was Born in India or China. Does Filing an NIW Green Card Application Provide Me with Any Benefits?
Even though a Green Card may not be available to you in the near term future because of the EB-2 Visa Bulletin backlogs for individuals born in India or China, there may still be advantages you can gain by filing an NIW Green Card application and obtaining an NIW I-140 Immigrant Petition approval, including:
Your NIW I-140 approval can be used to support H-1B extensions beyond the normal six-year limitation;
Your NIW I-140 approval can be used to support an application for H-4 work authorization for your spouse; and
Your NIW I-140 approval can give you the ability to transfer your I-140 priority date to another future I-140 Immigrant Petition filed under a different category.
Can NIW Green Card Applications Be Filed Using Premium Processing?
No. Unfortunately, NIW I-140 applications currently are not eligible for premium processing. As a result, NIW Green Card application processing times are significantly longer than EB-1A and EB-1B Green Card applications, which are eligible for premium processing.
Will My Spouse and Children Also Get a Green Card?
Yes. Your spouse and children (under age 21) will also be able to file I-485 Adjustment of Status Applications (once your EB-2 priority date is current) as part of your NIW Green Card application process, which will allow them to receive their own Green Cards.
What are the Government Filing Fees for an NIW Green Card Application?
I-140 Filing Fee: $700
I-485 Filing Fee for Principal Applicant: $1,225
I-485 Filing Fee for Dependent Spouse and/or Child over age 14: $1,225 each
I-485 Filing Fee for Dependent Child under age 14: $750 each
What are the Attorney Fees for an NIW Green Card Application?
NIW I-140 Attorney Fee: $4,000
I-485 Attorney Fee: $2,000 (add $1,250 for each dependent spouse/child)
These attorney fees are flat fees that covers all legal services provided in support of your NIW Green Card application.
How an Experienced EB-2 NIW Attorney Can Help
Our EB-2 NIW attorneys are highly skilled at helping clients navigate the immigration system, from gathering the necessary documentation through preparing for an interview and completing the final paperwork. This office is dedicated exclusively to the practice of immigration law and we work collaboratively with our clients to help them achieve their goals.