EB-2, the second preference category of employment-based visas, usually requires employer sponsorship before the USCIS will bring over foreign talent. Employers must show that they completed the labor certification (PERM) process and are therefore justified in offering the job to a noncitizen.
In some cases, though, foreign talent may obtain an EB-2 visa without employer sponsorship or, even, a job offer from a U.S. company. This refers to the EB-2 National Interest Waiver (NIW). Receiving the NIW requires the self-petitioner to satisfy many of the same requirements that apply to regular EB-2 visa holders.
Exceptional Ability
EB-2 visa holders must show they either have “exceptional ability” in business, arts, or sciences OR hold an advanced degree that is a condition of the job offer. The USCIS defines exceptional ability as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” There are six possible criteria for those attempting to demonstrate exceptional ability, and EB-2 applicants must satisfy at least three of them. They are:
- Having a degree or “similar award” from an institution of learning that pertains to the applicant’s area of alleged exceptional ability;
- Showing documentary evidence that the applicant has at least 10 years of full-time experience in their field;
- Having a professional license or certification for their occupation;
- Showing evidence of pay or remuneration for services rendered in connection with the alleged exceptional ability;
- Having membership in a professional organization or association;
- Showing recognition or awards for achievement or contributions; and
- Displaying other “comparable evidence” of eligibility.
Advanced Degree
If NIW applicants cannot show exceptional ability, they should look to the advanced degree requirement for EB-2 visas. Simply put, an advanced degree is a degree above a bachelor’s (or foreign equivalent). This includes a Master’s, M.D., J.D. Ph.D., or another post-baccalaureate degree. In some cases, the USCIS will accept a bachelor’s degree plus five years of “progressive experience” in the applicant’s industry.
Matter of Dhanasar
In addition to fulfilling the exceptional ability or advanced degree, NIW applicants must show they complete all three prongs of the NIW standard. This standard comes from a decision by the USCIS appeals office in the Matter of Dhanasar, which was decided in late December 2016.
- Would benefit the U.S. by engaging in their proposed endeavor and that it is in the best interests of the U.S. to waive the job-offer requirement AND PERM process;
- Have a proposed endeavor with substantial merit and national importance; and
- Are well equipped to “advance the proposed endeavor.”
RelisLaw Can Increase the Chances of a Successful NIW Petition
Not having to rely on a job offer or the PERM process (or any employer at all, sometimes) is attractive for many foreign workers wanting to obtain a green card in the U.S. Unmarried children younger than 21 and spouses of EB-2 visa holders may also be eligible to reside in the U.S. This application is extremely complex, though. RelisLaw helps applicants and employers dramatically increase their chances of success with many types of visas. If you think we can help you, reach out to our team today to start with a free 10-minute initial consultation.
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