EB-2 Green Card & EB-2 NIW

EB-2 GREEN CARD

Aliens of Exceptional Ability and Professionals with Advanced Degrees

The EB-2 preference category is for members of the professions who (i) hold advanced degrees, or (ii) because of their exceptional ability in the sciences, arts, or business, will substantially benefit the national economy, cultural or educational interests, or the welfare of the United States. Additionally, a U.S. employer must be seeking the person’s services in the sciences, arts, or business.

To qualify as a member of the professions with either an advanced degree, the position offered must require (and the person must have) either (i) a master’s degree (or foreign equivalent degree) in a specialty area; or (ii) a baccalaureate degree (bachelor’s degree or foreign equivalent degree), plus five years of progressively responsible experience in the area of specialty. 

To qualify as an alien of exceptional ability, the person must be able to prove his or her rare or unusual talents by providing at least three of the following: (i) a degree relating to the area of exceptional ability; (ii) letter(s) from current or former employer(s) documenting at least ten years of full-time experience; (iii) a license to practice a given profession; (iv) evidence that the person has commanded a high salary or remuneration demonstrating exceptional ability; (v) membership in a professional organization; or (vi) recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. The applicant must demonstrate expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Note that comparable evidence may be submitted if above categories are inapplicable. This evidence may include expert opinion letters. Also note that “formal recognition” in the form of certificates and other documentation that are contemporaneous with the claimed contributions and achievements may have more weight than letters prepared for the petition ‘recognizing’ the person’s achievements. 

EB-2 National Interest Waiver (NIW)

Foreign Nationals who seek an EB-2 NIW green card must first demonstrate that they are members of professions holding an advanced degree (or its equivalent), or that they possess exceptional ability in the sciences, arts, or business, and that their work will substantially benefit the national economy, cultural or educational interests, or welfare of the United States.

Additionally, the foreign national may file the Form I-140 petition on their own behalf, as the EB-2 NIW category allows for self-petitioning without the need for a US employer to sponsor them. The EB-2 NIW green card process enables foreign nationals to bypass the traditional perm labor certification process, which are typically required for employment-based green cards. USCIS evaluates each NIW application on a case by case basis, considering the unique circumstances of every applicant. Approval of the EB-2 NIW petition can lead to permanent residence, and applicants outside the U.S. may obtain an immigrant visa through consular processing.

In 1998, under the former Immigration and Naturalization Service, the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS) established a precedent-setting framework for evaluating national interest waiver petitions in the decision Matter of New York State Dep’t of Transp. (NYSDOT), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998). This framework guided USCIS adjudications for nearly two decades. However, in December 2016, the AAO issued a new precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), which overturned the NYSDOT standard and introduced a modernized approach for assessing National Interest Waiver (NIW) eligibility.

Matter of Dhanasar establishes that once eligibility for EB-2 classification is confirmed, USCIS may grant a National Interest Waiver (NIW) if the petitioner can demonstrate, by a preponderance of the evidence, the following:

1. The foreign national’s proposed endeavor has both substantial merit and national importance.
2. The foreign national is well positioned to advance the proposed endeavor.
3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

First Prong: The Proposed Endeavor Possesses Both Significant Merit and National Significance

When evaluating the proposed endeavor, USCIS determines, by a preponderance of the evidence, whether the endeavor holds substantial merit and national importance. The term “endeavor” refers to the specific work the individual plans to undertake within their occupation, rather than the occupation itself. Therefore, petitioners should provide detailed information about the particular activities and objectives of the proposed work.

It’s important to note that benefits to a particular employer, even a nationally recognized one, are not sufficient to determine whether the endeavor has national importance. The crux of the matter lies in demonstrating that the individual’s endeavor has broader implications, such as for a field, a region, or the public at large.

For example, an individual developing a specific technology solely for a particular company may not establish national importance based only on the technology benefiting that company or its clients. To demonstrate broader public or commercial significance aligned with national importance in the field or industry, the petitioner could provide evidence such as widespread interest in adopting or licensing the technology, the introduction of a novel and impactful manufacturing or operational process, or the potential influence of the technology on the development of similar innovations by other companies.

When explaining the endeavor, the petitioner should clearly and straightforwardly outline the potential direct impacts of their work, specifying whether it will be advanced through their duties at a particular employer or through other means.

The merit of the endeavor can be demonstrated across various fields, including business, entrepreneurship, science, technology, culture, health, and education.

While USCIS may consider evidence of the endeavor’s potential significant economic impact, it recognizes that merit can be established even without immediate or quantifiable economic benefits. Additionally, endeavors related to research, pure science, and the expansion of human knowledge may qualify, regardless of whether they are likely to generate direct economic advantages for the United States.

USCIS also evaluates the national importance of the proposed endeavor by focusing on its prospective impact. The assessment emphasizes the nature and significance of the endeavor itself rather than its geographic scope.

Second Prong: The Person is Well Positioned to Advance the Proposed Endeavor

The second prong of the evaluation focuses on the individual petitioner. To meet this criterion, the petitioner must demonstrate that they are well-positioned to advance the proposed endeavor.

USCIS assesses several factors to determine whether the petitioner is well-positioned, including but not limited to:

• The person’s education, skills, knowledge, and record of success in related or similar efforts.
• Evidence of a detailed proposal or plan developed by the individual or significantly contributed to by them for future activities related to the proposed endeavor.
• Any progress towards achieving the proposed endeavor.
• The interest or support garnered by the person from potential customers, users, investors, or other relevant entities or persons.

The petitioner should submit compelling documentary evidence to document the person’s past achievements, clearly explain how those achievements relate to the proposed endeavor, and provide proof of progress toward accomplishing it. Additionally, the petitioner should support any projections related to the endeavor with credible data or expert opinions. While the types of evidence submitted may vary, the overall goal is to convincingly demonstrate that the individual is well-positioned to successfully advance the proposed work.

Below is a non-exhaustive list of evidence types that may demonstrate a person’s suitability for advancing a proposed endeavor.

• Degrees, certificates, or licenses in the relevant field.
• Patents, trademarks, or copyrights developed by the person.
• Published articles or media reports highlighting the person’s achievements or current work.
• Documentation demonstrating a strong citation history of the person’s work or excerpts from published articles highlighting positive recognition or adoption of their contributions.
• Evidence demonstrating the person’s work has influenced the field of endeavor.
• A plan outlining the person’s intention to continue the proposed work in the United States.
• Correspondence from prospective or potential customers, users, investors, or other relevant entities.
• Documentation reflecting feasible financial support plans.
• Evidence of investment from U.S. investors, such as venture capital firms, angel investors, or start-up accelerators, with amounts appropriate to the endeavor, demonstrating strong financial backing and confidence in the project’s potential.
• Copies of contracts, agreements, or licenses showcasing the potential impact of the proposed endeavor.
• Letters from government agencies or quasi-governmental entities in the United States affirming the person’s suitability for advancing the endeavor.
• Evidence of awards, grants, or other forms of relevant non-monetary support—such as complimentary access to facilities—from federal, state, or local government entities with expertise in economic development, research and development, or job creation.
• Evidence demonstrating how the person’s work is being utilized by others, including contracts with companies using products developed or assisted in developing.
• Documents showcasing the technology the person invented or contributed to inventing, along with how others use that technology, and patents or licenses for innovations developed by the person, accompanied by documentation explaining why the patent or license is significant to the field, are required.

Recommendation letters can be particularly persuasive when they come from experts in the applicant’s field who have direct knowledge of the applicant’s achievements. These letters should detail specific examples of how the individual is well positioned to advance their proposed endeavor and be supported by independent, corroborating evidence.

Third Prong: On Balance, it Would be Beneficial to the United States to Waive the Job Offer and thus the Permanent Labor Certification Requirements

The third prong evaluates whether, on balance, it would be advantageous for the United States to waive the job offer requirement and, consequently, the permanent labor certification process.

To establish this, the petitioner must show that the benefits of granting the waiver outweigh the protections provided by the job offer and labor certification requirements. These requirements are designed to safeguard U.S. workers by ensuring that the hiring of foreign nationals does not negatively impact job opportunities, wages, or working conditions for American workers.

Congress established the labor certification program to protect U.S. workers and wages. However, Congress also recognized that in certain instances, waiving the job offer and labor certification requirements better serves the national interest.

USCIS evaluates whether the person’s endeavor and their ability to advance it provide benefits to the nation, such that a waiver of the labor certification requirement outweighs the benefits that typically flow from it. For example, an entrepreneur who is self-employed and whose activities do not negatively impact U.S. workers, or a petitioner who owns or has established a business that creates jobs for U.S. workers, may demonstrate that labor certification offers little additional benefit.

Petitioners may submit evidence supporting the third prong based on one or more of the following factors, as outlined in Matter of Dhanasar:

• Whether, considering the nature of the person’s qualifications or proposed endeavor, obtaining a labor certification would be impractical.
• The potential benefits to the United States from the prospective alien’s contributions, even if other U.S. workers were available; and
• The urgency of the national interest in the person’s contributions warrants forgoing the labor certification process, such as a time-sensitive public health or safety benefit offered by the endeavor.
• Whether the labor certification process may prevent an employer from hiring an individual with unique knowledge or skills that exceed the minimum standard requirements for the occupation and cannot be adequately represented through the labor certification; and
• Whether the individual’s proposed endeavor has the potential to produce significant economic impact, contributing to economic revitalization; and
• Whether the person’s endeavor may lead to potential job creation.

Specific Evidentiary Considerations for Individuals with Advanced Degrees in STEM Fields

USCIS recognizes the critical importance of advancements in Science, Technology, Engineering, and Mathematics (STEM) and the essential contributions of individuals holding advanced degrees in these areas, such as a master’s degree or Ph.D. This is especially true for work involving critical and emerging technologies or other STEM disciplines vital to U.S. national security and global competitiveness.

To determine whether a field qualifies as critical and emerging, USCIS officers review authoritative governmental, academic, and other relevant sources, along with evidence provided by the petitioner.

An advanced degree—particularly a master’s degree or Ph.D.—in a STEM discipline that aligns with the proposed endeavor and supports the advancement of critical and emerging technologies or other key STEM fields is a significant factor considered under the second prong of the NIW evaluation.

When evaluating the third prong and determining whether the United States would benefit from the individual’s entry, regardless of the availability of other U.S. workers (along with other factors discussed above, such as urgency), USCIS views the following combination of facts as a strong positive indicator:

• The person holds an advanced STEM degree, particularly a master’s degree or Ph.D.;
• The person will be engaged in work that advances a critical and emerging technology or another STEM field that is crucial to the competitiveness of the United States.; and
• The person is well-positioned to advance the proposed STEM endeavor of national importance.

EB-2 Petition Process

The petition process for the EB-2 NIW is designed to allow highly qualified individuals to demonstrate their eligibility and the national interest of their proposed endeavor. The first step is to ensure you meet the eligibility requirements for the EB-2 category, which means you must either possess an advanced degree (such as a master’s degree or higher, or a bachelor’s degree plus at least five years of progressive experience) or be able to prove exceptional ability in your field.

Once eligibility is established, you will need to gather comprehensive documentation. This includes official academic records showing your advanced degree or foreign equivalent, evidence supporting your exceptional ability (such as awards, publications, or membership in professional or business organizations), and letters of recommendation from recognized experts in your field. It is also crucial to provide a detailed description of your proposed endeavor and demonstrate how you are well positioned to advance it in the United States.

After assembling all supporting evidence, you will submit Form I-140, Immigrant Petition for Alien Worker, to USCIS. Unlike other EB-2 applicants, those applying for an EB-2 NIW can self-petition, meaning you do not need a job offer or employer sponsor. Throughout the application process, working with an experienced immigration attorney can help ensure your petition is thorough, well-documented, and clearly demonstrates how your work serves the national interest.

Benefits of EB-2 NIW

The EB-2 NIW offers significant advantages for foreign nationals seeking to obtain permanent residency in the United States. One of the most notable benefits is the ability to self-petition, which means you do not need an employer sponsor to apply. This is particularly advantageous for entrepreneurs, researchers, and professionals whose work may not fit within a traditional employment structure.

Another key benefit is the waiver of the labor certification requirement. The labor certification process, also known as PERM, can be time-consuming and complex, involving a labor market test to prove that no qualified U.S. workers are available for the position. By bypassing this step, the EB-2 NIW streamlines the application process, allowing eligible applicants to move more quickly toward obtaining a green card.

Additionally, the EB-2 NIW provides a direct pathway to permanent residency, offering long-term stability and the opportunity to live and work in the United States. For many foreign nationals, this flexibility and expedited process make the EB-2 NIW an attractive option for achieving their professional and personal goals.

Common Mistakes and Solutions

Applying for an EB-2 NIW can be complex, and several common mistakes can jeopardize your petition. One frequent error is failing to provide sufficient evidence to support your eligibility, such as incomplete academic records or inadequate documentation of exceptional ability. To avoid this, ensure you gather comprehensive supporting evidence and clearly organize your submission.

Another common mistake is not effectively demonstrating how your work is in the national interest. Applicants should provide detailed explanations and concrete evidence showing the broader impact of their proposed endeavor, such as job creation, advancements in technology, or contributions to public health. Working with an experienced immigration attorney can help you craft a compelling narrative and avoid these pitfalls, increasing your chances of a successful outcome.