Overview of the EB-2 NIW Purpose and Significance

The EB-2 NIW visa falls under the broader EB-2 category, which is intended for professionals with advanced degrees or exceptional ability. However, while the standard EB-2 visa requires a job offer and a lengthy labor certification process, the National Interest Waiver (NIW) component eliminates these requirements. Instead, applicants must demonstrate that their work holds substantial merit and national importance, effectively bypassing the typical prerequisites for employment-based visas.

The purpose of the EB-2 NIW is to facilitate the entry of individuals whose expertise or work aligns with the broader goals of the United States, such as enhancing national security, boosting the economy, or advancing technological and scientific research. This pathway is invaluable for applicants in professions where their contributions, rather than a specific job position, carry significant weight for the country.

Key Benefits of the EB-2 NIW Visa

The EB-2 NIW visa offers several distinct advantages, making it a highly sought-after option for foreign nationals who meet the eligibility criteria.

Here are some key benefits that distinguish the EB-2 NIW visa from other employment-based immigration options:

1. Waiver of Job Offer Requirement
   Unlike most employment-based visas, the EB-2 NIW does not require applicants to have a specific job offer in the United States. This flexibility allows individuals to pursue their work, research, or business activities independently, without needing to secure a sponsoring employer. It is especially advantageous for researchers, scientists, entrepreneurs, and self-employed professionals who may not have an immediate U.S. employer but wish to contribute to the national interest.
2. Exemption from PERM Labor Certification
   The PERM (Program Electronic Review Management) labor certification process can be time-consuming and complex, often taking several months to complete. The EB-2 NIW visa exempts applicants from the PERM requirement, simplifying the application process and accelerating their path to a green card. By waiving PERM, the U.S. government recognizes that the applicant’s contributions to the national interest outweigh the need to test the labor market for available U.S. workers.
3. Pathway to U.S. Permanent Residency
   The EB-2 NIW visa leads directly to lawful permanent residency (a green card), allowing successful applicants to live, work, and study anywhere in the United States. Permanent residency provides long-term security and allows individuals to advance their careers, contribute to their communities, and eventually apply for U.S. citizenship, if they wish. For professionals in areas like healthcare, academia, technology, and the arts, this pathway represents a unique opportunity to thrive and make meaningful contributions in the U.S.
4. Freedom to Pursue a Range of Activities
   EB-2 NIW recipients are not tied to a specific employer, offering them considerable freedom to choose their career paths and work settings. For example, a scientist specializing in environmental sustainability may work with multiple research institutions, or an entrepreneur could establish a startup focusing on green energy solutions without being bound to a single company. This flexibility is a significant advantage for highly motivated individuals whose work is inherently innovative and beneficial to the U.S.
   
5. Eligibility for Family Members
   Approved EB-2 NIW applicants can bring their immediate family members—spouses and unmarried children under 21—to the United States as derivative beneficiaries. Family members can also apply for a green card, and spouses are eligible to apply for employment authorization, enabling the family to settle in the U.S. with relative ease.

Examples of EB-2 NIW Eligibility and Application Scenarios

The EB-2 NIW visa is applicable across a wide array of professional fields. Here are some examples to illustrate the types of contributions that may qualify under the National Interest Waiver:

• Medical Researcher Advancing Public Health
  A virologist specializing in vaccine development may qualify for the EB-2 NIW if their research is expected to contribute significantly to public health, especially in areas like infectious disease prevention. The applicant could demonstrate how their work benefits the national interest by addressing urgent public health needs, a consideration particularly relevant in times of pandemic response.
• Environmental Engineer Promoting Sustainable Solutions
  An environmental engineer with a focus on renewable energy or pollution reduction may also be a strong candidate for the EB-2 NIW. By working on innovative technologies or sustainable practices that could lead to significant reductions in carbon emissions, the engineer’s contributions would align with the U.S. goal of combating climate change, thus satisfying the “national interest” criterion.
  
• Tech Entrepreneur Developing Cutting-Edge AI Solutions
  An entrepreneur working on artificial intelligence for healthcare diagnostics, for instance, could qualify for the EB-2 NIW by demonstrating how their AI solutions will improve early detection of diseases and reduce healthcare costs. By fostering innovation in healthcare technology, the entrepreneur’s work supports a priority area for national development and serves the public good.

For those considering applying for an EB-2 NIW visa, it’s essential to build a compelling case that highlights both the merit and national importance of their work.

Tips:

• Gather Evidence of Achievements: Compile documentation that showcases your contributions, such as published research, patents, awards, or recognitions in your field.
• Showcase National Importance: Be clear about how your work impacts U.S. interests, such as through letters from industry experts, publications, and documented achievements in key areas.
• Highlight Long-Term Potential: Explain how your expertise will continue to benefit the United States in the future, aligning with national goals in your industry.

The EB-2 NIW visa offers an unparalleled opportunity for highly skilled professionals to achieve permanent residency while making meaningful contributions to the United States. For those with the right qualifications, this visa not only opens doors to personal and professional growth but also positions them as valued contributors to America’s progress.

1. Substantial Merit and National Importance

The first prong of the Dhanasar test requires that the applicant’s proposed work demonstrates both “substantial merit” and “national importance.” This criterion assesses the intrinsic value and societal impact of the applicant’s work.

• Substantial Merit: To meet this criterion, the work should be valuable and significant in its field. It does not require that the work be groundbreaking, but it must have a level of merit that is likely to produce positive outcomes for society or the U.S. economy. Fields typically considered to have substantial merit include technology, education, science, health, culture, and business, as long as they contribute positively to national interests.
• National Importance: The term “national importance” refers to the potential of the applicant’s work to impact the United States on a broader scale, beyond immediate personal or local interests. Applicants should demonstrate how their work aligns with the country’s goals, such as economic development, public health, technological advancement, or educational improvements.

Examples of Qualifying Fields

Various fields can meet the substantial merit and national importance criteria, including but not limited to:

• Technology: An artificial intelligence (AI) researcher developing technology that enhances data security or improves healthcare diagnostics may qualify. Their work contributes to advancements in critical sectors with far-reaching implications.
• Education: An education policy analyst working on national education reform or a professor conducting significant research in early childhood education could demonstrate national importance, as their contributions improve the quality and accessibility of education.
• Public Health: A biologist working on infectious disease prevention, or a medical researcher focused on cancer therapies meets the substantial merit criterion and has a clear national importance, especially in the context of healthcare challenges.
• Environmental Science: Environmental engineers working on renewable energy solutions or climate scientists studying global warming impacts may also qualify, as their work aligns with national priorities for sustainable development.

2. Well-Positioned to Advance the Proposed Work

The second prong of the Dhanasar test requires the applicant to demonstrate that they are well-positioned to advance their proposed work in the U.S. This criterion focuses on the individual’s qualifications, including their academic background, professional experience, skills, and past accomplishments, which collectively indicate their capacity to make meaningful contributions.

• Importance of Credentials and Experience: Credentials are critical in establishing that the applicant has the expertise needed to execute their proposed work effectively. Academic degrees, research publications, professional awards, or past projects that align with the proposed work can all serve as evidence. For instance, an applicant with a Ph.D. in environmental science who has authored papers on renewable energy sources and has experience leading significant projects in sustainability would be well-positioned for an EB-2 NIW.
• Relevant Project Background: A history of successful project execution or impactful contributions in the relevant field strengthens an applicant’s case. For example, a biomedical researcher with a track record of successful clinical studies related to disease prevention would demonstrate their ability to continue making contributions of substantial merit and national importance.

Supporting Evidence Examples

• Letters of recommendation from field experts validating the applicant’s expertise and contributions.
• Published articles, patents, or documented evidence of professional achievements.
• A track record of leadership or key roles in relevant projects that align with the work described in the NIW application.

3. National Interest Justification

The final prong of the Dhanasar test focuses on whether granting a waiver is justified due to national interest. In other words, the applicant must demonstrate that their work benefits the United States to such an extent that it outweighs the need for a job offer and the PERM labor certification process. This element is crucial in establishing that the applicant’s contributions are not only valuable but also essential to the U.S. national interest.

• Demonstrating Public Benefit: The applicant should show how their work benefits the public or serves a significant societal need. For example, a cybersecurity expert developing systems to protect national infrastructure could argue that their work addresses urgent security concerns, making the labor certification process unnecessary.
• Avoiding Negative Impacts: By bypassing the PERM requirement, the applicant should show that their presence in the U.S. does not negatively impact the job market for U.S. workers. This is often satisfied by highlighting that the nature of their work has broad implications and does not directly compete with American workers but instead fills a unique need.

Case Law: Matter of Dhanasar

The Matter of Dhanasar, decided in 2016, redefined the eligibility requirements for the EB-2 NIW by establishing the three-prong test outlined above. The case provided a clearer, more flexible framework than previous rulings, which had often been restrictive. Under Dhanasar, the focus shifted toward a broader assessment of how the applicant’s work aligns with national interests and their ability to execute it effectively.

• Impact of Dhanasar: This ruling has made it easier for qualified professionals in various fields to obtain the NIW, particularly those engaged in work with national significance that does not necessarily fit traditional employment categories.

In summary, the EB-2 NIW visa, guided by the criteria set forth in Matter of Dhanasar, offers a pathway for skilled professionals whose work aligns with U.S. interests to secure permanent residency. By meeting the standards of substantial merit, demonstrating they are well-positioned to execute their work, and showing that their contributions justify waiving labor certification requirements, applicants can make a compelling case for the NIW. This visa route remains a valuable opportunity for individuals aiming to contribute to the U.S. across a variety of fields critical to national progress.

Why USCIS is Increasing the Difficulty of EB-2 NIW Adjudications

These are the increasing issues we are seeing with the U.S. Citizenship and Immigration Services (USCIS), who has become increasingly stringent in its adjudication of EB-2 NIW cases. This shift is largely due to a combination of policy changes, evolving immigration priorities, and heightened scrutiny aimed at ensuring only the most qualified candidates are granted this special waiver. Here are some reasons why USCIS is making it more challenging to secure approval for EB-2 NIW cases:

1. Heightened Standards for “National Interest” Criteria

The EB-2 NIW visa is intended to waive traditional employment-based visa requirements for individuals who can prove their work benefits the U.S. on a national scale. However, defining “national interest” is inherently subjective, and USCIS has been moving toward a narrower interpretation. Officers now often require a more compelling demonstration of how the applicant’s work is essential to national interests. This is evident in fields like business, where the applicant’s economic contribution might have once sufficed, but now USCIS expects explicit proof of broader social or strategic impact.

Additionally, following the Matter of Dhanasar decision, USCIS clarified the three-prong test for EB-2 NIW eligibility. Since then, USCIS has gradually applied a more detailed analysis under each prong, requiring applicants to present not only evidence of their past achievements but also their future potential impact on the national interest.

2. Increased Focus on Documented, Quantifiable Impact

USCIS officers are now looking for more tangible and measurable evidence of an applicant’s impact. This includes a strong preference for quantifiable accomplishments, such as specific economic contributions, documented improvements in public health outcomes, or technological advancements directly attributable to the applicant’s work. Merely stating the importance of the field is no longer enough; applicants must demonstrate their unique contributions and how they stand out among others in their profession. Letters of recommendation, while still essential, are often viewed as supplementary evidence rather than primary proof of national importance.

3. Scrutiny on Future Work Plans and Practical Implementation

In addition to proving past contributions, USCIS is now placing greater emphasis on an applicant’s future plans and their capability to execute those plans within the United States. For example, applicants are expected to provide detailed project descriptions, future research proposals, or business plans, showcasing how they intend to continue their work and its prospective benefits for the U.S.

USCIS often examines applicants’ future intentions more closely when they don’t have an employer sponsor, which is typically required for employment-based visas. Without this sponsor, USCIS wants reassurance that the applicant is self-sufficient, well-connected in their field, and able to execute their proposed work independently. This requirement can be particularly challenging for applicants without well-defined, highly specific project plans or for those in industries where future outcomes may be harder to forecast.

4. Increased Verification of “Well-Positioned” Criterion

USCIS has become more demanding in its assessment of whether an applicant is “well-positioned to advance” their proposed work. Applicants must prove not only that their work aligns with the national interest but also that they possess the experience, resources, and industry connections necessary to execute their plans effectively in the United States. This includes scrutinizing an applicant’s professional background, funding sources, collaborative networks, and documented project successes. For applicants without a robust portfolio of accomplishments or substantial support within their field, this criterion can be difficult to satisfy.

5. Emphasis on Non-Redundant Contributions

Another trend in USCIS adjudication is the insistence on non-redundant contributions. In other words, USCIS wants to ensure that the applicant’s work does not overlap with the contributions of U.S. citizens and other existing experts. The agency often seeks proof that the applicant’s work is unique and not readily available from existing talent within the United States. This shift aligns with a broader intent to prioritize U.S. labor and talent, requiring applicants to demonstrate that their work provides something distinctly valuable to the U.S. and fills a gap that would otherwise remain unaddressed.

6. Impact of Policy Changes and Administrative Pressures

Policy shifts and increased scrutiny across the U.S. immigration landscape have indirectly affected EB-2 NIW cases. In recent years, there has been a focus on tightening immigration standards overall, including employment-based immigration. This is part of an overarching trend toward prioritizing national security, economic stability, and the protection of U.S. workers, as well as reducing immigration system backlogs.

Consequently, USCIS officers are instructed to evaluate cases with an eye toward preventing “overuse” of waivers, including the NIW, to ensure that only the most qualified applicants with clear, demonstrable benefits to the national interest are approved. Adjudicators may feel pressure to apply the eligibility requirements more stringently to avoid setting precedents that could potentially open the door for less-qualified applicants in the future.

7. Increased Burden of Proof on the Applicant

Finally, USCIS has increased the burden of proof for EB-2 NIW applicants, effectively requiring them to demonstrate beyond a reasonable doubt that their work aligns with national interest goals. The adjudication process has shifted to favor cases with overwhelming, clear, and detailed evidence of national benefit, leaving less room for subjective assessments or flexible interpretations. As a result, the documentation required has become more exhaustive, often involving multiple sources of corroborative evidence, from expert letters to detailed project documentation, making the process both more time-consuming and challenging.

In Summary

USCIS has made the adjudication of EB-2 NIW cases more rigorous to ensure that only applicants who truly align with U.S. national interests are granted these waivers. By focusing on measurable impact, verifiable future plans, unique contributions, and an elevated burden of proof, USCIS is making it clear that the NIW should remain an exceptional category reserved for top-tier talent and critical work that directly benefits the nation. For applicants, this means the necessity of presenting a well-documented, compelling case with concrete evidence that demonstrates both their individual achievements and the specific ways in which their work advances the U.S.

Advanced Degree or Equivalent

The EB-2 NIW visa prioritizes individuals with advanced qualifications. USCIS specifies that applicants can qualify if they possess an advanced degree or its equivalent.

• What Qualifies as an Advanced Degree: An advanced degree typically refers to any degree above a bachelor’s degree, such as a master’s, professional degree (like a Juris Doctor or Doctor of Medicine), or a doctorate (Ph.D.). Common fields that require advanced degrees include sciences, engineering, education, business, and healthcare. For example, a master’s in computer science, a Ph.D. in biotechnology, or an M.D. in medicine all qualify as advanced degrees for the EB-2 category.
• Equivalent to an Advanced Degree: USCIS also allows individuals who do not possess a formal advanced degree to qualify if they have a bachelor’s degree plus at least five years of progressive experience in their field. Progressive experience means that the individual’s responsibilities and expertise have grown over time, indicating professional advancement. For instance, an applicant with a bachelor’s degree in mechanical engineering who has gained five years of increasingly complex experience in mechanical design would meet this criterion.

Examples of Equivalent Experience:

• A software engineer with a bachelor’s degree in computer science who has worked for five years in advanced software development, managing larger projects and using higher-level technical skills over time.
• A business analyst with a bachelor’s in business administration and five years of experience managing strategic initiatives that require high-level problem-solving, analysis, and leadership skills.

It is essential for applicants to provide detailed documentation proving both the educational qualification and the experience requirement. This can include transcripts, diplomas, letters from employers outlining specific job roles and duties, and any awards or recognitions that validate the applicant’s growing expertise.

Exceptional Ability

The second route to qualify for the EB-2 NIW is through “exceptional ability.” Applicants with exceptional ability may not need an advanced degree but must demonstrate that they have a level of skill and expertise significantly above that ordinarily encountered in their field. USCIS defines exceptional ability as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

Standards for Exceptional Ability

The exceptional ability standard requires applicants to meet at least three out of six criteria outlined by USCIS. Each piece of evidence should help establish that the applicant’s contributions, skills, and accomplishments are well beyond the norm in their field. Here’s a look at the qualifying criteria for exceptional ability:

1. Academic Records: Evidence of a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning related to the field in which the individual has exceptional ability.

• Example: An applicant with a diploma in fine arts and a track record of successful exhibitions might use their academic background to support exceptional ability.

• Example: A structural engineer with ten years of experience in designing large-scale infrastructure projects may qualify by showing their long-term contributions and skills in the field.

• Example: A certified public accountant (CPA) with additional experience and recognition within the accounting industry could use their certification as evidence of exceptional ability.

• Example: A software architect in artificial intelligence earning a salary well above the industry average may be able to use this as proof of exceptional ability.

• Example: An architect who belongs to an exclusive, invite-only association for top designers with published contributions could support their case with this criterion.

• Example: A biochemist who has received multiple awards from prestigious science organizations for their research contributions could use these awards as evidence of exceptional ability.

Importance of Supporting Documentation

Exceptional ability applicants should provide robust evidence supporting each criterion they meet. This documentation could include award certificates, professional memberships, letters of recommendation, articles featuring their work, and records of salary or compensation levels. It’s also beneficial for applicants to have expert testimonies or letters from renowned professionals in their field to further validate their exceptional ability and contributions.

Why These Requirements Matter

The advanced degree or exceptional ability requirement is a critical threshold for the EB-2 NIW visa, as it ensures that only highly skilled professionals who can contribute significantly to the U.S. qualify for this waiver. By meeting one of these requirements, applicants demonstrate that they possess the specialized knowledge, skills, or experience needed to benefit the United States and further national interests. This qualification standard aligns with USCIS’s goal of attracting and retaining top global talent in key areas such as science, technology, business, education, and the arts.

To qualify for the EB-2 NIW visa, applicants must meet strict criteria for either an advanced degree or exceptional ability:

• Advanced Degree: Holds a degree above a bachelor’s or has a bachelor’s degree with at least five years of progressive experience.
• Exceptional Ability: Demonstrates expertise significantly above the norm, meeting at least three of six specified criteria.

By adhering to these requirements, USCIS ensures that EB-2 NIW applicants represent the best in their fields, bringing high-value skills and knowledge that can benefit the United States.

EB-2 NIW Visa Application Process

The EB-2 National Interest Waiver (NIW) visa application process involves several steps, starting with the submission of Form I-140, Immigrant Petition for Alien Worker, and concluding with either an Adjustment of Status (AOS) within the U.S. or Consular Processing (CP) from abroad. Understanding each step, the associated costs, and the expected timelines can help applicants prepare effectively for this process.

Form I-140 Submission

The first step in the EB-2 NIW application process is filing Form I-140, Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services (USCIS). This form is essential as it allows the applicant to demonstrate their eligibility for the EB-2 NIW category, showing that they meet both the educational or exceptional ability requirements and the Matter of Dhanasar criteria for the National Interest Waiver.

• Filing Details: Form I-140 can be filed by the applicant (self-petitioning) or by a U.S. employer if there is one. In the case of the EB-2 NIW, many applicants self-petition because they do not need a job offer to qualify for the waiver. This flexibility is a unique benefit of the EB-2 NIW and makes it ideal for researchers, scientists, entrepreneurs, and other professionals whose work holds substantial merit and national importance.
• Required Documentation: With the I-140, the applicant must provide detailed evidence supporting their eligibility for the EB-2 NIW. This includes:
• Proof of an advanced degree or exceptional ability.
• Documents supporting the national importance, merit, and the applicant’s well-positioned status to execute the proposed work.
• Letters of recommendation, a résumé, publications, awards, or any other supporting evidence demonstrating the applicant’s contributions.
• Associated Fees: The filing fee for Form I-140 is $715 plus additional government fees. Additional costs may include attorney fees if the applicant is working with an immigration lawyer to prepare and submit the petition. In some cases, premium processing (an expedited processing service) is available for certain EB-2 categories; however, premium processing is currently not available for EB-2 NIW petitions.
• Processing Time: Standard processing times for Form I-140 vary significantly depending on the USCIS service center handling the petition. For EB-2 NIW petitions, processing may take anywhere from 8 to 12 months, though it can sometimes take longer due to increased scrutiny and backlogs.

Premium Processing of EB2-NIW applications. Pros and cons.

Premium processing, which allows applicants to expedite the review of their Form I-140 for an additional fee of $2,805, promises USCIS will make a decision within 15 calendar days. While this sounds appealing for applicants eager to fast-track their EB-2 National Interest Waiver (NIW) petition, there are several reasons why it may not be a good idea to apply for premium processing for this type of case:

1. Complexity and Nuance of EB-2 NIW Cases

The EB-2 NIW is inherently more complex than other employment-based visa categories because it requires a subjective assessment of the applicant’s qualifications under the Matter of Dhanasar three-prong test:

• Substantial merit and national importance
• The applicant’s well-positioned ability to advance the proposed work
• National interest justification for waiving the job offer and PERM requirement

USCIS officers need to carefully analyze the documentation supporting these three prongs, which often includes academic publications, letters of recommendation, professional achievements, and explanations of how the applicant’s work benefits the U.S. at a national level. Rushing through such an extensive evaluation can lead to a superficial review, increasing the likelihood of a Request for Evidence (RFE) or a denial. Premium processing timelines might pressure USCIS officers to make a quick decision without thoroughly understanding the nuanced evidence, which can hurt the applicant’s chances of approval.

2. Increased Likelihood of RFEs (Requests for Evidence)

Since premium processing requires USCIS to make a decision within 15 days, officers may issue an RFE if they feel they do not have adequate time to analyze the petition thoroughly. RFEs require additional documentation and can slow down the overall timeline, often negating the initial time saved with premium processing.

In EB-2 NIW cases, RFEs commonly request further clarification of how the applicant’s work meets each prong of the Dhanasar test, especially concerning national interest justification and the applicant’s unique qualifications. Providing this additional evidence can add several months to the processing time, ultimately making premium processing a less effective approach.

3. Premium Processing Does Not Apply to the Entire Green Card Process

Premium processing only expedites the decision on the I-140 petition, not the entire green card process. After the I-140 is approved, the applicant still needs to either:

• File for Adjustment of Status (AOS) if they are in the U.S. (Form I-485)
• Proceed with Consular Processing (CP) if they are outside the U.S.
• Both AOS and CP have separate processing times that are not expedited by premium processing. For applicants from countries with long priority date backlogs (e.g., India and China), the time saved on the I-140 approval through premium processing may not significantly impact the overall timeline, as they may still have to wait years for their priority date to become current.

4. Potential Cost with Limited Benefit

The premium processing fee of $2,805 is substantial, and since it only covers the I-140 stage, it may not provide sufficient value, especially considering that the entire green card process is long and involves multiple stages. Applicants who apply for premium processing might end up spending a large amount without substantially reducing their overall green card timeline.

For applicants with a current priority date, premium processing might offer some benefits, but only if they are prepared to immediately file an Adjustment of Status (AOS) or go through Consular Processing. However, in most cases, the time saved on the I-140 does not justify the high cost if subsequent steps still take a considerable amount of time.

5. EB-2 NIW is Not as Time-Sensitive as Other Employment-Based Visas

Unlike other categories, such as the H-1B or O-1, where timing is critical to maintain legal status and employment in the U.S., the EB-2 NIW does not require an immediate job offer or an employer sponsor. Since EB-2 NIW applicants are often self-petitioners (filing on their own rather than through an employer), they generally have more flexibility in terms of timing. The lack of an employer sponsorship requirement also means they aren’t under the same immediate pressure to expedite their petition to secure employment authorization.

Additionally, since the NIW category is designed to prioritize individuals whose work aligns with national interest, many applicants are already in the U.S. on other visas (such as F-1, J-1, or H-1B) or working abroad, and do not face immediate restrictions that make premium processing essential. The additional wait for standard processing is often manageable for most NIW applicants.

6. Waiting for Additional Evidence of Impact and Achievement

For many NIW applicants, waiting a little longer before filing can actually strengthen their case. If an applicant anticipates receiving additional recognitions, awards, or publications that would bolster their application, they may benefit from standard processing timelines, which give them more time to submit stronger evidence if USCIS issues an RFE.

In fields where impact can be quantified over time—such as research studies yielding new results, patents being granted, or business ventures achieving milestones—waiting to file (or filing without premium processing) allows applicants to present the most robust case possible. Rushing through with premium processing can limit the applicant’s ability to showcase these future achievements, potentially weakening their petition.

While premium processing may initially seem like an appealing option to expedite the EB-2 NIW process, it often introduces more challenges than benefits. The unique requirements of the EB-2 NIW, including subjective evaluations under the Matter of Dhanasar test and the likelihood of RFEs, mean that applicants often benefit from a more comprehensive and deliberate review process. Additionally, the high cost, limited impact on the total green card timeline, and reduced flexibility in presenting future achievements make standard processing a more suitable choice for most EB-2 NIW applicants.

Adjustment of Status vs. Consular Processing

Once Form I-140 is approved, the next step is to obtain the green card. This step depends on whether the applicant is located within the U.S. or abroad and involves choosing between Adjustment of Status (AOS) and Consular Processing (CP).

Adjustment of Status (AOS)

Adjustment of Status is available to applicants who are physically present in the United States. With AOS, eligible applicants can “adjust” from their current visa status to lawful permanent resident status without leaving the U.S. AOS is completed by filing Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS.

• When to Choose AOS: Adjustment of Status is generally preferable for applicants already in the U.S. on a nonimmigrant visa (such as H-1B, F-1, or O-1) who want to avoid the need to return to their home country for processing. Additionally, AOS applicants can concurrently file Form I-765 (Application for Employment Authorization) and Form I-131 (Application for Advance Parole), allowing them to work and travel while their AOS is pending.
• Associated Fees: The filing fee for Form I-485 varies based on the applicant’s age but is typically around $1,440 for adults, including biometrics fees. Applicants filing concurrently with Forms I-765 and I-131 do incur extra fees for those forms.
• Processing Time: The timeline for Adjustment of Status depends on the applicant’s priority date, which is based on the applicant’s country of origin. For applicants from countries with no visa backlog, AOS processing typically takes about 12 to 18 months. However, if the applicant’s country of origin is subject to visa retrogression (such as India or China), they may face a much longer wait before they can file for AOS, depending on the U.S. Department of State’s Visa Bulletin availability.
• Concurrent Filing: In cases where the priority date is current (meaning visa numbers are immediately available), applicants may file Form I-485 concurrently with Form I-140. Concurrent filing can streamline the process, as USCIS will review both forms simultaneously, reducing the overall timeline.

Consular Processing (CP)

Consular Processing is available to applicants outside the United States or those within the U.S. who choose to return to their home country for the final processing of their immigrant visa. This process involves attending an interview at a U.S. consulate or embassy in the applicant’s country of origin or residence.

• When to Choose CP: Consular Processing is generally the only option for applicants residing outside the U.S. It may also be a faster choice for applicants from countries with current priority dates who prefer not to wait for Adjustment of Status. Additionally, CP is sometimes preferred for applicants whose current U.S. visa status does not allow them to file for AOS within the United States.
• Associated Fees: Consular Processing has different fees, including a $325 visa application fee paid to the U.S. Department of State and a $120 Affidavit of Support fee if applicable. Applicants may also incur costs for medical examinations, which must be completed by a designated physician.
• Processing Time: Consular Processing typically takes between 6 to 12 months, depending on the U.S. embassy or consulate’s caseload. Once Form I-140 is approved and the priority date is current, applicants can expect to receive an appointment for their consular interview within several months.
• Steps Involved in Consular Processing:
• National Visa Center (NVC): After Form I-140 approval, the case is transferred to the National Visa Center (NVC), which will notify the applicant to submit the required fees, forms, and documentation.
• Medical Examination: Applicants must complete a medical examination with a consular-designated physician and bring the results to their visa interview.
• Consular Interview: During the interview at the consulate, the applicant will answer questions about their background and the purpose of their application. If approved, they will receive an immigrant visa to enter the U.S.
• Green Card Issuance: Upon entering the U.S. with the immigrant visa, the applicant becomes a lawful permanent resident, and their green card will be mailed to their U.S. address.

Comparison: Adjustment of Status vs. Consular Processing

Key Considerations for EB-2 NIW Applicants

• Priority Dates: For applicants from countries with high demand (e.g., India and China), it is crucial to monitor the monthly Visa Bulletin issued by the Department of State to determine if their priority date is current and whether they are eligible to file for AOS or schedule their consular interview.
• Concurrent Filing: If the priority date is current, applicants within the U.S. can consider concurrent filing for Forms I-140 and I-485 to expedite the process.
• Dual Intent: While EB-2 NIW applicants generally hold nonimmigrant visas, the dual intent doctrine allows them to apply for permanent residence without jeopardizing their existing visa status.

In conclusion, the EB-2 NIW process involves careful planning and preparation, from the initial I-140 submission to the final green card step via AOS or CP. The option chosen will depend on the applicant’s circumstances and location, with both processes requiring attention to fees, documentation, and processing times.

Key Considerations for EB-2 NIW Applicants

• Priority Dates: For applicants from countries with high demand (e.g., India and China), it is crucial to monitor the monthly Visa Bulletin issued by the Department of State to determine if their priority date is current and whether they are eligible to file for AOS or schedule their consular interview.
• Concurrent Filing: If the priority date is current, applicants within the U.S. can consider concurrent filing for Forms I-140 and I-485 to expedite the process.
• Dual Intent: While EB-2 NIW applicants generally hold nonimmigrant visas, the dual intent doctrine allows them to apply for permanent residence without jeopardizing their existing visa status.

In conclusion, the EB-2 NIW process involves careful planning and preparation, from the initial I-140 submission to the final green card step via AOS or CP. The option chosen will depend on the applicant’s circumstances and location, with both processes requiring attention to fees, documentation, and processing times.

Form I-140 Filing Fee

Regardless of location, all EB-2 NIW applicants must start by filing Form I-140, Immigrant Petition for Alien Worker.

• Form I-140 Fee: $715
  This fee is required by USCIS for processing the petition. It is a one-time payment submitted with the Form I-140 plus additional fees.
• Optional Premium Processing Fee (if available): $2,805
  Premium processing allows for a faster 15-day response time on the I-140 decision. However, premium processing is often not ideal for EB-2 NIW cases due to the detailed evaluation required (as explained earlier). This fee is optional and only covers expedited processing of the I-140 petition, not the entire green card application process.

For U.S.-Based Applicants: Adjustment of Status Fees

Once the Form I-140 is approved, applicants within the United States can file for Adjustment of Status (AOS) using Form I-485 to change from their current visa status to lawful permanent resident (green card) status. This option is available only for those physically present in the U.S. on a valid nonimmigrant visa.

• Form I-485 Fee (Application to Register Permanent Residence or Adjust Status): $1,440
  This includes:
• $1,140 for the I-485 application

Note: The biometrics fee is typically required only for applicants between the ages of 14 and 79. Children under 14 and applicants over 79 may have reduced fees.

• Form I-765 Fee (Employment Authorization): $520 or other applicable fees (if filed with I-485)
  Adjustment of Status applicants are eligible to apply for a work permit while their green card is pending.
• Form I-131 Fee (Advance Parole Travel Document): $630 (if filed with I-485)
  Applicants can also apply for advance parole, allowing them to travel internationally while their AOS is pending.

For International Applicants: Consular Processing Fees

If the applicant resides outside the U.S., they will proceed with Consular Processing after the I-140 approval. This involves an interview at a U.S. embassy or consulate in their home country.

• National Visa Center (NVC) Processing Fees: $325
  This fee is paid to the U.S. Department of State after Form I-140 is approved and the case is transferred to the NVC. It covers the immigrant visa application processing.
• Affidavit of Support Fee (if required): $120
  This fee applies only if a financial sponsor (usually a family member or petitioner) is required to file Form I-864, Affidavit of Support. For self-petitioned EB-2 NIW applicants, this fee typically does not apply, as there is no employer or sponsor requirement.
• Medical Exam Fees: Variable
  International applicants must complete a medical exam with an embassy-designated physician. The costs vary depending on the country and provider, typically ranging from $200 to $500. Applicants must also complete certain vaccinations as required for immigration, which may incur additional costs.

Additional Considerations

• Attorney Fees (Optional): Variable
  Many applicants choose to work with an immigration attorney for assistance with the complex EB-2 NIW application process. Attorney fees vary depending on the law firm and the level of support required.
• Translation and Document Preparation Costs: Variable
  If documents (such as academic transcripts, employment records, or recommendation letters) are not in English, they must be translated and certified. Translation fees vary by language and the number of documents.

Additional Considerations

Supporting Evidence: Essential Documents to Strengthen the Application

Strong supporting evidence is key to building a compelling case for an EB-2 NIW. Here are the essential categories of documents and tips for presenting them effectively:

Proof of Advanced Degree or Exceptional Ability

To satisfy the EB-2 NIW’s eligibility requirements, applicants must demonstrate they either hold an advanced degree or possess exceptional ability in their field.

• Advanced Degree Documentation:
• Academic transcripts and diplomas (for master’s or doctoral degrees).
• If using a bachelor’s degree with five years of progressive experience as the equivalent of an advanced degree, include letters from employers detailing roles, responsibilities, and growth over time.
• Credential evaluations if the degree was obtained outside the U.S. (to show equivalency to U.S. academic standards).
• Exceptional Ability Documentation:
• Professional licenses, certifications, and memberships in exclusive associations that require significant achievements.
• Documentation of high salary compared to peers, awards, and recognition in the field.
• Letters of recommendation from credible experts in the field attesting to the applicant’s exceptional contributions.

Evidence for the Three-Prong Matter of Dhanasar Test

Each prong of the Matter of Dhanasar test requires specific evidence to demonstrate how the applicant’s work aligns with national interest standards.

• Substantial Merit and National Importance:
• Project Descriptions: Detailed explanations of the applicant’s work and its societal, economic, scientific, or technological impact.
• Letters from Experts and Organizations: Endorsements from recognized figures or entities (e.g., universities, research institutions, or industry organizations) attesting to the national importance of the applicant’s work.
• Published Work: Academic journal articles, patents, research papers, or case studies that show the value and relevance of the applicant’s contributions.
• Well-Positioned to Advance the Proposed Endeavor:
• Résumé/Curriculum Vitae: A well-structured CV highlighting professional achievements, leadership roles, and specialized skills.
• Past Achievements: Evidence of successfully completed projects, awards, or recognitions that demonstrate the applicant’s capability to advance the field.
• Letters of Recommendation: Multiple letters from reputable professionals, ideally with detailed examples of the applicant’s impact and suitability to continue advancing their work in the U.S.
• National Interest Justification:
• Benefit to the U.S.: Evidence showing how the applicant’s work fills a critical need, supports U.S. economic growth, or advances national priorities (e.g., health, technology, environmental sustainability).
• Unique Contributions: Documentation that distinguishes the applicant’s work from others in their field, showing it is non-redundant and that they bring unique expertise.

Additional Documentation

• Personal Identification and Immigration Records: Passport copies, current U.S. visa, Form I-94 (if applying from within the U.S.).
• Proof of Maintenance of Status (if filing for Adjustment of Status): For applicants currently in the U.S., this includes copies of previous Form I-20s (for F-1 visa holders), DS-2019 (for J-1 holders), or Form I-797 approval notices for H-1B or other visas.
• Cover Letter or Petition Letter: This is a comprehensive summary of the case, explaining how the evidence aligns with the Matter of Dhanasar criteria. An attorney often drafts this letter to emphasize the applicant’s strengths and clarify the narrative of the case.

Additional Resources: Credential Evaluation Services and Visa Bulletin

Having access to reputable resources can greatly enhance your application process. Here are some recommended resources:

Credential Evaluation Services

If you have obtained a degree outside the United States, USCIS requires a credential evaluation to confirm its equivalency to a U.S. degree. This is particularly important for applicants using an advanced degree or equivalent to qualify for EB-2 NIW status.

USCIS accepts evaluations from credential evaluation services that are members of the National Association of Credential Evaluation Services (NACES)

NACES is a leading association of credential evaluation services in the U.S., known for its rigorous standards. Evaluations from NACES members are widely recognized by USCIS, educational institutions, and professional licensing boards.

Make sure to choose an accredited evaluation service, as USCIS only accepts evaluations from agencies affiliated with organizations such as the National Association of Credential Evaluation Services (NACES).

Tips for Choosing a Credential Evaluation Service

• Check for Membership: Ensure the evaluation service is a member of NACES or AICE, as USCIS is more likely to accept evaluations from these organizations.
• Determine Required Evaluation Type: Choose between document-by-document, course-by-course, or work experience evaluations based on the visa category’s specific requirements.
• Consider Processing Time: Some evaluation agencies offer expedited services if you need faster results.
• Review Additional Fees: Agencies may charge extra for rush services, notarized copies, or translations, so it’s wise to review all costs in advance.

U.S. Department of State Visa Bulletin

The Visa Bulletin, published monthly by the U.S. Department of State, is crucial for understanding whether your priority date is current and when you can proceed with the final steps of the green card process.

• Access the Visa Bulletin: travel.state.gov
• The Visa Bulletin provides updates on priority date cutoffs for each country and employment-based visa category, including EB-2.
• Priority dates may retrogress for applicants from countries with high demand, such as India and China, so it’s essential to monitor the bulletin to determine your filing eligibility.

Understanding the Visa Bulletin is essential for both U.S.-based applicants seeking Adjustment of Status (Form I-485) and international applicants pursuing Consular Processing. Monitoring the bulletin ensures that applicants file at the correct time, avoiding delays and missed opportunities.

1. Organize Your Evidence Carefully: Arrange documents logically, clearly labeling each section to match the eligibility criteria. This will help USCIS officers review your application more efficiently.
2. Use High-Quality Letters of Recommendation: Request letters from experts in your field who can provide detailed insights into your contributions and explain why your work is crucial to the national interest.
3. Review the Matter of Dhanasar Requirements: Tailor your evidence to meet the three-prong test, making sure your documents clearly address substantial merit, your positioning to advance the work, and national interest justification.
4. Double-Check Visa Bulletin Dates: Ensure your priority date is current if you plan to file for Adjustment of Status. If applying from abroad, follow the Visa Bulletin to know when you’re eligible to attend your consular interview.
5. Consult an Attorney if Needed: If your case is complex or you’re uncertain about specific requirements, consider working with an experienced immigration attorney who can help you build a compelling and well-documented application.

Additional Resources: https://www.naces.org/