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The National Interest Waiver (NIW) allows foreign nationals to obtain a U.S. Green Card without a job offer or labor certification, enabling them to self-petition for permanent residency if their work serves the U.S. national interest.

Eligibility for EB-2 Classification (Prerequisite for NIW)

Before even considering the NIW, you must qualify for the underlying EB-2 visa. This requires meeting one of the following two criteria:

1. Advanced Degree

• U.S. Advanced Degree or Foreign Equivalent: You must possess a Master's degree, Ph.D., or other post-baccalaureate degree from a U.S. institution or a foreign equivalent.
• Bachelor's Degree + Five Years Progressive Experience: A U.S. baccalaureate or a foreign equivalent followed by at least five years of progressive experience in the specialty is considered the equivalent of an advanced degree. This experience must be post-baccalaureate and directly related to your field.
• Proof: Official academic records (degree, diploma, certificate).

2. Exceptional Ability

You must demonstrate a significant level of expertise in your field of work that is "significantly above the norm." This requires meeting at least three of the following criteria:

• Official Academic Record: A degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability.
• Experience: Letters documenting ten or more years of full-time experience in your occupation.
• License/Certification: A license or certification to practice your profession or occupation.
• Salary/Remuneration: Evidence that you have commanded a salary or other remuneration for services that demonstrates exceptional ability.
• Professional Association Membership: Membership in one or more professional associations that require achievement from their members.
• Recognition of Achievements/Contributions: Recognition for your achievements and/or significant industry contributions from your peers, government entities, or professional/business organizations.
• Comparable Evidence: Other comparable evidence if the above categories are not applicable.

The Three-Prong Test for National Interest Waiver (Matter of Dhanasar)

Once you meet the EB-2 eligibility, USCIS will evaluate your petition against the three criteria established in the Matter of Dhanasar precedent. All three prongs must be satisfied by a preponderance of the evidence.

Prong 1: The Proposed Endeavor Has Both Substantial Merit and National Importance.

• Substantial Merit: The endeavor should have inherent value and be worthwhile. This can be established even without immediate or quantifiable economic impact. Endeavors related to research, pure science, and the furtherance of human knowledge can qualify.
• National Importance: The endeavor must have broad implications for the United States. Officers focus on the nature of the proposed endeavor, not just its geographic breadth. Evidence that the endeavor has the potential to:
  • Broadly enhance societal welfare.
  • Contribute to cultural or artistic enrichment.
  • Advance a valuable technology or field of study.
  • Have a significant potential economic impact (though not strictly required).
  • Specificity: You must offer details about the specific projects and goals you propose to undertake within your occupation, rather than just general duties.

Prong 2: You Are Well Positioned to Advance the Proposed Endeavor.

This prong assesses your capability to execute your proposed work. USCIS considers:

• Education, Skills, Knowledge, and Record of Success: Your past achievements in related or similar efforts.
• Model or Plan: A developed model or plan for future activities related to the endeavor.
• Progress Towards Endeavor: Any tangible steps or progress you've made.
• Interest or Support: Interest or support garnered from potential customers, users, investors, or other relevant entities/persons.
• Corroborating Evidence: Submission of evidence to document past achievements and corroborate projections. Unsubstantiated claims will not suffice.

Prong 3: On Balance, it Would Be Beneficial to the United States to Waive the Requirements of a Job Offer and Labor Certification.

This final prong requires you to demonstrate that waiving the labor certification process (which ensures U.S. workers are not adversely affected) is more beneficial to the United States. Factors considered include:

• Impracticality of Labor Certification: For example, if you are an entrepreneur self-employed in a manner that generally does not adversely affect U.S. workers, or if you establish a business that creates jobs for U.S. workers, the benefit of labor certification may be minimal.
• Benefit Despite Other U.S. Workers: The benefit to the U.S. from your prospective contributions, even if other U.S. workers were also available.
• Urgency of National Interest: The national interest in your contributions is sufficiently urgent, especially for U.S. competitiveness in STEM fields.
• Specific Considerations:
  • Whether urgency (e.g., public health or safety) warrants foregoing labor certification.
  • Whether labor certification might prevent hiring someone with unique knowledge or skills that exceed minimum requirements and cannot be captured by the labor certification process.
  • Potential to generate considerable revenue (economic revitalization).
  • Potential for job creation.

Specific Evidentiary Considerations

Here's a breakdown of evidence that can support your NIW petition, categorized for clarity:

General Evidence

• Degrees, Certificates, Licenses: Proof of your formal education and professional qualifications.
• Patents, Trademarks, Copyrights: Documentation of your intellectual property, with explanations of their significance.
• Letters from Experts: Strong letters of recommendation from experts in your field describing your past achievements and specific examples of how you are well-positioned to advance your endeavor. These should be detailed and specific.
• Published Articles/Media Reports: About your achievements or current work.
• Citation History/Positive Discourse: Documentation demonstrating a strong citation history of your work or excerpts of published articles showing positive discourse around or adoption of your work.
• Influence on Field: Evidence that your work has influenced your field of endeavor.
• Plan for Future Work: A clear plan describing how you intend to continue your proposed work in the United States.
• Business Plan: A detailed business plan or other description, with supporting evidence, if applicable.
• Correspondence: From prospective or potential employers, clients, or customers.
• Financial Support: Documentation reflecting feasible plans for financial support for your endeavor (especially for entrepreneurs).
• Investment: Evidence of investment from U.S. investors (venture capital, angel investors, start-up accelerators) with amounts appropriate to the endeavor.
• Contracts/Agreements/Licenses: Showing the potential impact of your proposed endeavor.
• Awards/Grants/Non-monetary Support: From federal, state, or local government entities with expertise in economic development, R&D, or job creation.
• Usage by Others: Evidence of how your work is being used by others (e.g., contracts with companies using your products, documentation of invented technology and its use by others, significant patents/licenses).

For STEM Graduates (Specific Evidentiary Considerations)

USCIS recognizes the importance of STEM fields, especially those furthering critical and emerging technologies or other areas important to U.S. competitiveness or national security.

• Critical and Emerging Technologies: Refer to authoritative lists (e.g., those from the National Science and Technology Council or National Security Council) to identify if your field aligns.
• Strong Positive Factor: An advanced degree, particularly a Ph.D., in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security, is considered an "especially positive factor" for the "well-positioned" prong.
• Theoretical STEM: Even theoretical STEM areas (like theoretical mathematics or physics) can qualify if they further U.S. competitiveness or national security as described in the proposed endeavor.
• Broad Implications: Many STEM endeavors aim to advance technologies and research, which often have substantial merit and sufficiently broad potential implications to demonstrate national importance.
• Caution: Classroom teaching activities in STEM, by themselves, generally do not establish national importance.
• Strong Positive Combination (for Prong 3):
  1. Possession of an advanced STEM degree (especially a Ph.D.).
  2. Engagement in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness.
  3. Being well-positioned to advance the proposed STEM endeavor of national importance.

For Entrepreneurs (Specific Evidentiary Considerations)

Entrepreneurs may not follow traditional career paths, and USCIS acknowledges varied start-up structures.

• Ownership and Role: Evidence of an ownership interest and an active, central role in a U.S.-based entity (e.g., founder/co-founder, officer).
• Knowledge, Skills, Experience: Demonstrated knowledge, skills, or experience that significantly advance the proposed endeavor, potentially including leading prior start-up entities.
• Investments: Independent validation through investment, binding commitments to invest, or future intent to invest by outside investors (angel investors, venture capital firms), consistent with industry standards and appropriate to the endeavor's capital needs.
• Incubator/Accelerator Participation: Admission into an incubator or accelerator as an endorsement of your plan or track record.
• Awards or Grants: From federal, state, or local government entities with expertise in economic development, R&D, or job creation, or from other entities like policy/research institutes.
• Intellectual Property: Relevant patents held by you or your entities, with documentation showing their significance and your contribution.
• Published Materials: Media attention or recognition in printed or online publications about you or your entity (with reference to your role).
• Revenue Generation & Job Creation: Growth metrics showing revenue generation, jobs created in the U.S., and your contribution. This can demonstrate national importance, especially if the entity is in an economically depressed area.
• Letters from Third Parties: From relevant government entities, outside investors, or established business associations with knowledge of your research, products, services, or your ability to advance the endeavor. These provide independent review.
• Success Metrics: While typical entrepreneurial metrics (revenue, profitability) are considered, USCIS acknowledges that innovations can fail. The focus is on demonstrating substantial merit, national importance, being well-positioned, and the overall benefit of the waiver.

The Role of Interested Government Agencies or Quasi-Governmental Entities

While not mandatory, letters from interested government agencies or quasi-governmental entities (e.g., federally-funded research and development centers) can be highly beneficial and relevant to all three prongs:

• Prong 1 (Substantial Merit & National Importance): Can establish the agency's expertise in your endeavor and that your STEM endeavor advances a critical technology or is otherwise important for U.S. technological prominence.
• Prong 2 (Well-Positioned): Detailed letters can provide relevant information about your capability to advance the endeavor.
• Prong 3 (Beneficial to U.S.): Can explain a particular urgency or detail how the U.S. would benefit from your contributions, even if other U.S. workers are available, thereby outweighing the benefits of labor certification.

The EB-2 NIW Application Process and Timeline

Obtaining an EB-2 NIW is a multi-step process.

1. Prepare Your Petition:

• Gather all required documentation and evidence.
• Draft a comprehensive petition letter explaining how you meet the EB-2 criteria and the three NIW prongs.
• Secure strong letters of recommendation.

2. File Form I-140, Immigrant Petition for Alien Worker:

• Submit Form I-140 along with all supporting documentation to USCIS.
• You will receive a receipt notice (Form I-797C, Notice of Action) within 1-2 weeks.

3. USCIS Adjudication of I-140:

• USCIS will review your petition to determine whether you meet the criteria.
• Processing Time (I-140):
  • Regular Processing: Historically, 6 to 15 months, though current trends may show an average around 7.6 months. These times vary significantly by USCIS service center and case complexity.
  • Premium Processing: For an additional fee, you can request premium processing for Form I-140. This guarantees a decision (approval, denial, or Request for Evidence (RFE)) within 45 calendar days. This does not expedite subsequent steps (like Form I-485). It's generally recommended for strong applications to avoid RFEs.
• Request for Evidence (RFE): If USCIS needs more information, they will send an RFE. You typically have 84 days to respond. This will extend your processing time.
• Approval: If approved, you will receive an I-797, Approval Notice.
• Denial: If denied, consult with your attorney. You may be able to file a motion to reopen or appeal to the Administrative Appeals Office (AAO) with new evidence.

4. Priority Date and Visa Availability:

• Upon I-140 approval, you will receive a "priority date." This date determines when an immigrant visa number becomes available to you.
• Visa Bulletin: You must monitor the U.S. Department of State's Visa Bulletin (https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html). Your priority date must be "current" in the Visa Bulletin for your category (EB-2) and country of chargeability before you can proceed to the next step. Country-specific backlogs, particularly for India and China, can lead to significant waiting periods.

5. Green Card Application (Once Priority Date is Current):

• Adjustment of Status (Form I-485) - If in the U.S.:

  • If you are already in the United States and your priority date is current, you can file Form I-485, Application to Register Permanent Residence or Adjust Status.
  • Concurrent¹ Filing: In some cases, if your priority date is current at the time of filing your I-140, you may be able to file Form I-140 and Form I-485 concurrently.
  • Processing Time (I-485): Employment-based I-485 applications currently average around 6.9 months.
  • Ancillary Benefits: When filing I-485, you can also apply for:
    • Employment Authorization Document (EAD) - Form I-765: Allows you to work legally while your I-485 is pending. Current processing time: around 2.1 months.
    • Advance Parole (Travel Document) - Form I-131: Allows you to travel internationally while your I-485 is pending without abandoning your adjustment of status application. Current processing time: around 6.4 months.
    • Biometrics: You will likely need to attend a biometrics appointment for fingerprints and photos.
    • Medical Examination (Form I-693): A medical examination report from a USCIS-approved civil surgeon is required. It's now often recommended to file this concurrently with Form I-485.

• Consular Processing (Form DS-260) - If Abroad:

  • If you are outside the U.S. when your priority date becomes current, you will go through "consular processing" at a U.S. embassy or consulate² in your home country.
  • This involves completing the online Immigrant Visa Application (Form DS-260) and attending an interview.
  • Processing Time (Consular Processing): Can take 4 to 12 months, depending on the consulate's workload.

Total Processing Time (Estimate):

The entire process from I-140 filing to Green Card approval can range widely. While I-140 can be expedited, the overall time depends heavily on visa bulletin availability for your country. For some, it might be less than a year, while for others from backlogged countries like India or China, it could be many years due to the visa bulletin wait.

Costs Associated with EB-2 NIW Application
(Approximate, subject to change)

USCIS fees were updated in April 2024. Attorney fees vary significantly.

Note on Fees: It's crucial to check the official USCIS website for the most current fee schedule before filing, as fees are subject to change.

Practical Considerations and Implementation

• Specificity is Key: When describing your proposed endeavor, be as specific as possible. Instead of saying you are an "engineer," detail the specific engineering projects, goals, and areas you will focus on.
• Connecting to National Interest: Clearly articulate how your work benefits the U.S. on a national scale. Link it to societal welfare, cultural enrichment, technological advancement, economic impact, or national security. Broad, unsubstantiated claims are insufficient.
• Demonstrate Your Position: Provide concrete evidence that you are uniquely qualified and positioned to advance your proposed endeavor. This includes not just your credentials but also your past achievements, plans, and any support from relevant entities.
• Strong Recommendation Letters: These are crucial. They should come from experts who can speak to your abilities, the national importance of your work, and how you are uniquely positioned. Generic letters are not effective.
• Thorough Documentation: Organize your evidence meticulously. Missing or poorly organized documents can lead to RFEs and delays.
• Legal Counsel: While self-petitioning is allowed, engaging an experienced immigration attorney is highly recommended. They can help you:
  • Assess your eligibility.
  • Strategize on how to best present your case.
  • Evaluate and curate your supporting evidence.
  • Draft compelling petition letters.
  • Respond to RFEs effectively.
  • Navigate complex immigration laws and policy updates.
• Stay Updated: USCIS guidance and processing times can change. Regularly check the official USCIS website and the Visa Bulletin.