Green Card Roadmap
for EB-2 NIW
For Advanced Degree Professionals and Individuals of Exceptional Ability
The EB-2 National Interest Waiver allows qualified professionals to self-petition for permanent residence without a job offer or labor certification. This roadmap walks you through the entire two-step process—from filing the I-140 petition and meeting the NIW three-prong test to applying for your green card through adjustment of status or consular processing.
Overview of the EB-2 NIW
The EB-2 National Interest Waiver offers a powerful pathway to permanent residence for advanced degree professionals and individuals of exceptional ability—without the need for a job offer or labor certification.
What Is the EB-2 NIW?
Professionals holding an advanced degree or individuals of exceptional ability in the arts, sciences, or business fall into the employment-based second preference category (EB-2). The EB-2 route to permanent residence usually requires a job offer for which the potential U.S. employer must first test the U.S. labor market for similarly qualified U.S. workers. This is done through a lengthy process called "Labor Certification" (also known as PERM) filed with the Department of Labor.
However, certain advanced-degree professionals or individuals of exceptional ability qualify for a waiver of the job offer and labor certification requirement. Once a National Interest Waiver (NIW) is granted, the foreign national no longer needs a qualifying job offer from a U.S. employer and is free to self-petition for permanent residence.
NIW Waiver Requirements
- Your proposed work has substantial merit and national importance.
- You are well-positioned to advance your proposed endeavor.
- On balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirement.
The Two-Step Process
Step 1: File the I-140 Immigrant Petition
The foreign national (or any U.S. employer, individual, or third party) files Form I-140, Immigrant Petition for Alien Workers, with USCIS, along with Form ETA-9089 – Appendix A: Foreign Worker Information and supporting documentation.
Step 2: Apply for Permanent Resident Status
Upon approval of the I-140 petition and granting of the NIW, the foreign national applies for the actual green card—either from inside the U.S. through an application for adjustment of status (AOS), or by applying for immigrant visa processing (IVP) through a U.S. Consulate or Embassy abroad. In some cases, the I-140 petition and AOS application can be submitted simultaneously; however, IVP can only be done after approval of the I-140 petition.
EB-2 NIW Eligibility Requirements
To qualify for the EB-2 NIW, you must first demonstrate that you meet the baseline qualifications as either an advanced degree professional or a person of exceptional ability, and then satisfy the three-prong NIW test.
Qualifying as an Advanced Degree Professional
To qualify under the advanced degree category, you must have either:
- A master's degree (or its foreign equivalent); or
- A bachelor's degree (or its foreign equivalent) plus evidence of at least five (5) years of progressive experience in the field after the degree was earned.
Qualifying as a Person of Exceptional Ability
To qualify under the exceptional ability category, you must possess "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." You must meet at least three (3) of the following six (6) criteria:
- A degree, diploma, certificate, or similar award relating to the area of exceptional ability.
- Experience letters confirming at least ten (10) years of full-time experience in the occupation.
- A license to practice or a certification for the occupation or profession in question.
- Evidence of receipt of a salary or other remuneration high enough to demonstrate exceptional ability.
- Evidence of membership in professional associations.
- Evidence of peer or expert recognition for achievements and significant contributions to the industry or field.
The NIW Three-Prong Test
To qualify for the National Interest Waiver and be exempt from the job offer and labor certification requirement, your petition must satisfy all three of the following prongs:
Step 1: Substantial Merit and National Importance
Your proposed endeavor has both substantial merit and national importance.
Step 2: Well Positioned to Advance the Endeavor
You are well positioned to advance the proposed endeavor.
Step 3: Beneficial to Waive Requirements
On balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirement.
Final Merits Determination
When adjudicating I-140 petitions on behalf of exceptional workers, USCIS uses a two-step approach. First, the reviewing officer determines whether you meet the minimum criteria outlined above. If you do, the officer then performs a subjective "final merits" analysis and considers the submitted evidence in its totality to evaluate whether you qualify for the exceptional ability classification. For approval, both steps must be passed.
Step 1 — The I-140 Petition
The first step in the EB-2 NIW process is filing the I-140 Immigrant Petition for Alien Workers with USCIS. This section covers the documentation you'll need to prepare.
Documentation for the I-140 Petition
Below is a list of the types of supporting documents that must be submitted with the I-140 NIW petition. Upon case initiation, we will provide you with a comprehensive and detailed document checklist tailored to your situation.
Identity, Status, and Biographical Documentation
- Copy of your passport.
- Current Curriculum Vitae or resume.
- I-94 with travel history, previously issued visa(s), and previously issued I-797 Approval Notice(s), as applicable.
If Applying as an Advanced Degree Professional
- Copies of your educational degrees (with certified English translation, if applicable).
- If your highest degree is a bachelor's or its foreign equivalent: Letters from current or previous employer(s) confirming at least five years of progressive experience in your field after graduation.
If Applying as a Person of Exceptional Ability
- Comments on your published works by critics or journal referees, if any.
- Evidence of awards, prizes, or honors received, if any.
- Copies of your educational degrees relating to your area of exceptional ability, if any (with certified English translation, if applicable).
- Evidence of your membership(s) in professional organizations, if any.
- Criteria needed to be met to be accepted as a member of such an organization.
- Details of the funding for your research projects or grants, if any.
- List of publications, citation reports (e.g., Google Scholar), abstracts, and invitations to conferences and symposia.
- Requests to reprint your publications, if any.
- Evidence of grants or patents, if any.
- Copies of paychecks, tax records, or other evidence of high remuneration, if any.
NIW-Specific Documentation
- Detailed description of your specific endeavor in the U.S.
- Evidence to support your argument that you meet all three prongs for an NIW and therefore qualify for a waiver of the job offer and labor certification requirement.
- List of persons who will provide recommendation letters, including their names, titles, and employers, along with information about the professional reputation of these individuals (e.g., links to their CVs, media profiles, or articles about their work).
Step 2 — Applying for Your Green Card
After approval of the I-140 petition (or concurrently in some cases), you must apply for permanent resident status through either adjustment of status (AOS) or immigrant visa processing (IVP).
Adjustment of Status vs. Immigrant Visa Processing
Documentation Required for Step 2
| AOS (Adjustment of Status) | IVP (Immigrant Visa Process) |
|---|---|
| Form I-485, Application to Register Permanent Residence or Adjust Status | Form DS-260, Immigrant Visa and Alien Registration Application |
| Approval Notice of the underlying I-140 petition (if not filed concurrently with the AOS application) | Valid passport |
| Valid passport | Copy of your long-form birth certificate (with certified English translation, if applicable) |
| Copy of your long-form birth certificate (with certified English translation, if applicable) | As applicable: Copy of government-issued marriage certificate; copy of final decree of divorce |
| As applicable: Copy of government-issued marriage certificate; copy of final decree of divorce | Police certificates for all countries where you have lived for six months or more since your 16th birthday |
| Sealed envelope with your medical exam results and immunization information, issued by a specially authorized physician ("civil surgeon") | Medical exam results and immunization records, issued by a specially authorized physician ("panel physician"). This step cannot be completed until you have been scheduled for your consular interview. |
Family Members
Your spouse and minor unmarried children under the age of 21 are eligible for permanent residence as derivative beneficiaries of the approved I-140 EB-2 NIW petition. However, each qualifying family member must file their own green card application through adjustment of status or immigrant visa processing. The fees associated with family filings are not included in the cost estimates below and will be quoted as applicable.
Costs and Filing Fees
The EB-2 NIW green card process involves legal fees and government filing fees at each step. Below is a breakdown of the costs you can expect.
Step 1: I-140 Petition Costs
Asylum Program Fee Discounts
Nonprofit petitioners are exempt from the $600 Asylum Program Fee. Small employer petitioners with 25 or fewer full-time equivalent employees qualify for a 50% discount ($300).
Premium Processing ensures action on your case within 45 business days.
Step 2: Green Card Application Costs
The costs for Step 2 vary depending on which route you choose (AOS or IVP). Please note that these costs do not include the legal or government filing fees for green card applications filed by or on behalf of family members (spouse and/or children).
Step 2 Fee Comparison
| Fee Type | AOS (Adjustment of Status) | IVP (Immigrant Visa Process) |
|---|---|---|
| Legal Fees | $3,250 | $3,750 |
| Primary Application | I-485: $1,440 | DS-260 Processing: $345 |
| Employment Authorization (I-765) | $260 | N/A |
| Travel Document (I-131) | $630 | N/A |
| Medical Exam | Fees vary | Fees vary by country |
| Travel Expenses | N/A | Varies |
Important Note on Fees
All legal fees represent current rates and are subject to periodic adjustments. Your legal fees may differ depending on the timeline of your case. Government filing fees are also subject to change; however, we will do our best to provide you with the most accurate estimates.
Strategies and Special Considerations
The EB-2 NIW framework offers flexibility for various types of applicants, including those who may not fit neatly into the standard criteria and entrepreneurs seeking to build businesses in the United States.
Comparable Evidence for Exceptional Ability
USCIS understands that one or more of the criteria for exceptional ability may not readily apply to your occupation. If this is the case, you may submit alternative but "comparable" evidence. However, you must be able to explain why the evidence you submit instead of one or more of the criteria is comparable.
EB-2 NIW for Entrepreneurs
The waiver of a job offer and labor certification makes the EB-2 NIW a viable option for many entrepreneurs, especially those who are highly educated. The current framework established in Matter of Dhanasar explicitly includes entrepreneurs in its discussion of the three requirements for granting an NIW.
How Entrepreneurs Meet the Three-Prong Test
Entrepreneurs and the NIW Prongs
- Substantial merit and national importance: Entrepreneurs can meet this prong by offering products or services that serve the public good or advance U.S. cultural, educational, or economic interests, and/or by demonstrating their venture's significant potential to employ U.S. workers or provide other substantial economic benefits, especially in economically depressed regions.
- Well positioned to advance the endeavor: USCIS will consider the entrepreneur's education, skills, and previous track record, as well as the interest of potential customers, investors, or other relevant individuals or entities. Startups in particular will need a well-developed business plan—which can also be used to demonstrate future hiring plans for the first prong.
- Beneficial to waive requirements: USCIS acknowledges that entrepreneurial endeavors make it highly impractical to secure a job offer from a U.S. employer and that the labor certification process, with its focus on finding minimally qualified workers, is not well suited for specifically selecting the best and brightest individuals with unique knowledge and skills.
Legal and Policy Sources
- 8 C.F.R. § 204.5(k)
- Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)
- USCIS Policy Manual, Vol. 6, Part F, Ch. 5 – Advanced Degree or Exceptional Ability; Adjustment of Status
- Travel.State.gov: Employment-Based Immigrant Visas
Disclaimer
Immigration policies and regulations are complex and frequently subject to change. The information contained in this roadmap is intended to provide you with a general overview and may not address your particular circumstances and needs. Serotte Law will assist you along the way and answer any questions you may have about the EB-2 NIW green card process.
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Our experienced immigration attorneys can guide you through every step of the process. Schedule a consultation to discuss your specific situation.
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