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EB-2 NIW Green Card

Obtaining an employment-based green card can be a long and intensive process that usually requires job offers, labor certifications, and petitions. Each different preference level has its benefits as well as its disadvantages. Fortunately, the EB-2 National Interest Waiver (NIW) enables advanced degree holders and people with exceptional ability to circumvent both the labor certification and job offer requirements by allowing them to self-petition.

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What is EB-2 NIW

EB-2 petitioners can avoid the PERM Labor Certification process by establishing that the beneficiary should get a national interest waiver. The National Interest Waiver (NIW) allows a foreign national to self-petition and file an I-140 on behalf of themselves without an employer’s involvement and a labor certification application.

For almost two decades, the Matter of New York State Department of Transportation (NYSDOT) severely limited the availability of national interest waivers. This case established a three-prong approach for determining whether a foreign national is eligible for a national interest waiver. In 2016, the Administrative Appeals Office (AAO) revised the approach to be more inclusive for a broader range of potential scenarios.

EB-2 National Interest Waiver Requirements (AAO)

1. Substantial Merit and National Importance

The first NIW requirement is that the applicant must show that their endeavor has substantial merit and national importance. This merit can be shown in business, science, technology, health, culture, or education. There does not need to be quantifiable evidence of economic impact, though it may help your case.

Meeting this requirement does not create a blanket approval, and the U.S. government shall review applications on a case-by-case basis.

2. Ability to Advance the Proposed Endeavor

The second NIW requirement is that the foreign national must be able to advance the proposed endeavor. This means the AAO will look at factors such as:

Educational background
Experience, skills
Record of similar successes
Current progress
Plan for success

Petitioners don’t need to prove that their endeavor will succeed, but rather they can make it succeed.

3. U.S. National Interest in Waiving the Job Offer Requirement

The final NIW requirement is that the applicant present evidence that the U.S. would benefit on balance to waive the job offer criteria for an EB-2. “On balance” means that the advantages of waiving the job offer requirement outweigh the advantages of not waiving it. Additionally, to qualify for the NIW, you must meet the requirements of the EB-2 green card.

How to File EB-2 NIW

There are several steps necessary to file an EB-2 NIW to bypass the labor certification process:

1. Determine Eligibility

2. Gather Supporting Documents

3. File I-140 and pay the accompanying fees (listed below)

4. Await the USCIS decision

5. File Form I-485 Application to Adjust Status (if in the U.S. and your priority date is current)

6. Biometrics and interview appointment

7. Receive a green card

EB-2 NIW Green Card Processing Time

The NIW green card processing time depends on several factors, including the assigned USCIS Service Center and the adjudicating officer. The processing time for the I-140 NIW can range from 12 to 16 months. As of April 2025, the average processing time for the I-140 advanced degree or exceptional ability requesting a National Interest Waiver (NIW):

Nebraska service center: 16 months
Texas service center: 12 months

Processing times vary as USCIS evaluates each application and supporting evidence on a case-by-case basis. It’s best to consult an NIW green card lawyer who can give you a full breakdown of your case.

Form I-485: Adjustment of Status

After the I-140 is successfully processed, you can adjust your status. The processing time for this step is around 13 months (premium processing not available), according to USCIS Data.

EB-2 NIW Premium Processing

Premium processing is available for all pending and new EB-1C Multinational Executive and Manager petitions and all pending and new EB-2 NIW petitions. This reduces I-140 processing time to 45 days

EB-2 National Interest Waiver Documents Checklist

As a recap, here’s a list of the documents required:

Form I-140
Form ETA-750B
Evidence supporting that the applicant has an advanced degree or exceptional ability
Petition letter drafted by EB-2 NIW green card lawyer
Letters of recommendation (see below)
Affidavits from leaders in your field
Evidence of past achievements, mentions, or recognition
Documentation showing that a labor certification would adversely affect the national interest
Proof of 2+ years of experience in the area
An updated resume
Evidence of memberships, publication citations, conferences, or other articles

You must file all of these documents concurrently with your petition to be eligible for the NIW green card. If your petition and ETA-750B are approved, you can move on to the next step only if your priority date is current.

Despite successfully obtaining a National Interest Waiver, you will still need to wait until your priority date is current. The priority date is the day that the USCIS receives your I-140 petition. You must check the monthly visa bulletin released by the Department of State to see if your priority date matches the final action date given in the EB-2 category for your country of origin. For some countries, the priority date takes several years to become current, but it can be no time for others.

Once your date is current, you can either adjust your status if you are in the U.S. under a valid nonimmigrant status or go through consular processing if you don’t have a valid status. Adjusting your status requires filing an I-485 form and waiting for approval. Consular processing involves making an appointment with a U.S. Consulate or Embassy in your home country and participating in a one-on-one interview with a consular officer. In either case, you will have your NIW green card after approval!

All About NIW Letters of Recommendation

Letter Requirements

Letters of recommendation or support letters help reinforce your NIW case if they can demonstrate national interest and show that you have had an impact within your respective field which highlights your work’s benefits. These letters can be from high-level managers, former employers, and colleagues, or anyone else familiar with the benefits of your work.

However, it is essential to note that the USCIS will place different weight on letters of recommendation depending on who wrote them. For example, letters from peers and colleagues will hold less weight than letters written by esteemed contemporaries that did not have a hand in your work.

NIW Letter Sample

As it stands, there is no minimum nor maximum number of recommendation letters that are required. If you choose to include them, they should be underneath Form I-140 in your package. Once received, USCIS will examine these letters of recommendation in addition to the credentials of their writers. Accompanying these letters should be a list of the individuals who wrote the letters and their titles and employers.

How to Prove That You Have Exceptional Ability

To put the NIW into perspective, we need to understand the purpose of the PERM Labor Certification. The PERM is designed to protect American jobs and mitigate the amount of job outsourcing. This is why U.S. employers must offer the prevailing wage and determine that no qualified U.S. workers are available to take the position.

Your endeavor must be beneficial enough to warrant waiving this protective policy. In essence, this is what the regulations mean when they say that the U.S. must benefit “in the balance.” The positive impact of your endeavor must outweigh the benefits of the PERM.

If you do not possess an advanced degree or its equivalent, then you must provide evidence that you have exceptional ability to qualify for your EB-2. Here are some items that qualify:

Letters from past or current employers proving that you have a minimum of ten years of experience working in your field full-time.
Licensing or certification that enables you to practice your trade.
Evidence of having an exceptional salary that relates to your ability.
Maintaining membership in an association of professionals that requires an exceptional ability for membership.

It is important to note that this list is not exhaustive, and there may be many items that could serve to prove your exceptional ability. If you believe that you qualify, but do not see your evidence listed here, be sure to retain the services of an immigration attorney to learn if your proof fulfills the requirements.

EB-2 NIW Cost and Filing Fees

The filing fees for the EB-2 NIW are as follows:

I-140 Immigrant Petition for Alien Worker: $715
I-485, Application to Register Permanent Residence or Adjust Status: $1,440 (applicable if adjusting status from a valid non-immigrant status while living in the U.S.)
DS-260 filing fee: $325 (Applicable if applying from outside the U.S.)
Premium processing fee (optional): $2,805
Legal fees (optional): An EB-2 NIW lawyer can provide expertise in preparing and filing the required and evidence for an approved NIW.

What If My NIW Is Denied?

Like anything else in immigration law, there is always the possibility that your petition will not be approved. If you’ve experienced an NIW denial or are looking to avoid it, here are some common reasons:

Filing too much evidence – if you bog your case down with excessive documents, your evaluating officer will likely miss the more critical evidence.
Not advocating your case well – remember it’s not enough to simply state your qualifications. You also need to argue them in a way that makes you eligible according to the regulations.
Poor reference letters – make sure your letters of recommendation are from experts and can back up their information with facts about your work.

If your NIW was denied, you can choose to make a legal motion to reopen or reconsider your case, you can appeal to a third party (the Administrative Appeals Office), or you can consult your immigration attorney to see if there is another green card option available to you. You don’t want to take any legal action against the evaluating officer without an attorney to guide you.

The legal motions of reopening or reconsidering are essential appeals to the evaluating officer. In a motion to reopen, you are asking the officer to take a second look at your case in light of new evidence that has come to light. For a motion to reconsider, you demonstrate that the evaluating officer was incorrect in their decision to deny your NIW green card case. It is important to note that these are delicate legal procedures and should not be attempted without the help of an immigration attorney.

NIW vs. PERM

If you are wondering whether you should take the NIW or PERM path to a green card, or if you are just wondering what the difference between these two documents are, let’s review them.

The PERM Labor Certification is a Department of Labor process to protect the jobs of current U.S. workers. It serves to help prevent employers from hiring large numbers of green card holders and replacing their workforce with less expensive labor.

To get a PERM, an employer must place a job order with the state and advertise for the position through several channels for at least 30 days. The employer also needs to interview potential applicants and give a reason for denying each one. Only if no qualified candidates apply can the PERM be obtained, allowing the beneficiary to get a green card.

The PERM is required for all EB-3 petitions and most EB-2 petitions. The only way to avoid this requirement for the EB-2 is through the National Interest Waiver.

The advantages of the PERM are that you can obtain an EB-3 with one and do not have to prove that your work is in the national interest to qualify. However, the disadvantages of the PERM are that you must have a sponsoring employer and a full-time job offer. Also, the DOL may choose to audit the PERM or enact supervised recruitment, which can slow the process down for nine months or more.

The advantages of the NIW are that the PERM process is waived by going through the NIW process. You can self-petition, and you do not have to have a job offer. However, NIW cases are subjected to higher scrutiny.

National Interest Waiver Criteria for Physicians

Physicians seeking an EB-2 NIW must demonstrate that they’ll be working in an underserved area or at a hospital dedicated to the Veterans Administration (VA) within the U.S. for five years. These physicians must provide supporting evidence that their services will meet the minimum criteria.

Current EB-2 NIW Approval Rates

There has been a downward rate of EB-2 NIW approvals since 2022. That year it was exceptionally high at 96% while it declined slightly in 2023 to about 80% and then in 2024 even lower to 43% according to USCIS statistics reports. The downward trajectory of approvals could be due to a combination of stricter adjudicating standards by USCIS as well as an increase in volume petitions.

With that being said, you do improve your chances of an approval by having an immigration attorney handle your case. They’ll be able to check that all the proper criteria are met and ensure that the necessary paperwork is submitted.