EB-2 NIW: An Updated Primer (Jan 2024)
This post is for someone very unfamiliar with U.S. immigration law who just wants to get basic bearings on all this talk of "EB-2 NIW."
In U.S. immigration law, there are temporary visas and then totally separate from temporary visas, there are options for U.S. permanent resident status (green card status).
A green card is permission to live and work in the United States indefinitely and if you have a green card generally for 5 years, you can qualify for US citizenship.
Many people in the United States on temporary visas would like green cards and many people outside the United States would like green cards.
One avenue to a green card is EB-2 NIW.
Note: If you are unfamiliar with U.S. immigration law and the various routes to a green card, consider reviewing this post as an overall summary of the system (in a non-comprehensive way).
Within the world of green card processing is Employment-Based (EB) immigration. The term “Employment-Based” is a bit of a misnomer as a couple of the EB immigration options do not require an employer.
Within EB immigration, one of the routes to a green card is known as EB-2 NIW.
“EB-2 NIW” is an abbreviation for “Employment-Based 2nd Preference National Interest Waiver.”
EB-2
The first thing to know about EB-2 NIW is that it is a route to a green card, but it is not a ‘status’. So if you want to be in the United States, you need a valid visa status independent from EB-2 NIW.
The second thing to know about EB-2 NIW is that it is available to anyone who meets the requirements, even if they are not currently in the United States. In our firm, the largest growth in our EB-2 NIW practice is professionals who are abroad and who are seeking to immigrate to the United States via EB-2 NIW.
It is also possible to be in the United States in a temporary visa status and then go abroad and wait to immigrate pursuant to an immigrant visa based on an EB-2 NIW filing.
It is useful to think of EB-2 NIW as a combination of “EB-2” with “NIW.” When it comes to “EB-2” - the individual seeking EB-2 NIW must have:
A U.S. Master’s degree, or foreign equivalent degree, or higher; or
A U.S. Four-Year Bachelor’s degree, or foreign equivalent degree, plus 5 years of post-Bachelor’s work experience; or
Eligibility based on the regulatory definition of “exceptional ability.”
So this tells you a couple things:
Not everyone is eligible for EB-2 NIW; and
Not everyone needs to demonstrate “exceptional ability.”
You only have to demonstrate “exceptional ability” if you do not qualify based on a Master’s degree or Bachelor’s + 5 years’ experience. There is a lot of confusion about that. The criteria for “exceptional ability” are somewhat similar (but definitely not the same) as O-1 or EB-1A or EB-1B and some people assume you must demonstrate “exceptional ability” but that is not true. You only need to demonstrate “exceptional ability” if you don’t have a Master’s or Bachelor’s + 5 years of post-Bachelor’s.
NIW
After a person establishes eligibility for “EB-2” - then the person needs to establish eligibility for “NIW” or “National Interest Waiver.”
The “waiver” is a requirement of an employer sponsor and a test of the labor market.
If an employer sponsors someone for a green card, then the employer must generally go through the PERM labor certification process, which is a test of the local labor market; but EB-2 NIW is a “waiver” of the labor certification process based on contributions to an area in the “National Interest.”
There is a key administrative law case called Matter of Dhanasar that lays out the 3-prong test to qualify for NIW. There are a lot of misunderstandings about the case Matter of Dhanasar and this post will not go through all the misunderstandings, but I can confirm there is a lot of subjectivity in how USCIS analyzes the 3 prong test. And sadly, people who don’t really understand the law flounder around about how to meet the 3 prong test.
Why is EB-2 NIW so popular now (in Jan 2024)?
EB-2 NIW has become popular in the last couple years for a few reasons:
The Biden Administration has released policy guidance to tell USCIS officers to ‘liberalize’ their consideration and adjudication standards for EB-2 NIW, making it easier to get approved for EB-2 NIW.
The H-1B cap lottery has become so hard to win that people are looking for alternatives to stay in the United States other than H-1B.
The PERM labor certification process has gotten so slow that EB-2 NIW is often considered a faster and more attractive option to a green card versus PERM.
USCIS now permits premium processing of EB-2 NIW I-140s making it even more attractive for a fast approval versus the painfully slow-moving PERM.
Note that it has always been the case that people could self-petition for EB-2 NIW but as more people have become aware of the liberalization of the adjudication standards by the Biden Administration, more people have sought EB-2 NIW, not just for people in the United States but people outside the United States.
More and more international students, particularly graduate students, particularly those not born in India or China, see EB-2 NIW as an attractive way to obtain U.S. permanent residence (green card status) without an employer. As the Visa Bulletin backlogs have gotten worse, it has meant that graduate students are starting earlier and earlier to hopefully ensure their priority date is current before the end of their F-1 OPT and STEM OPT period.
The trends that have made EB-2 NIW popular in 2022 and 2023 will likely continue in 2024. If you know someone who might want to consider EB-2 NIW, please check out the various articles and case studies I have published on this newsletter. If you have questions about EB-2 NIW, feel free to post your questions below.
I hope this primer has been useful to you.
And “no Dwight, EB-2 NIW does not involve a beet farm!”
How can I reach you for ab evaluation for EB2 NIW
Thank you for this information!