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The Ultimate EB-2 NIW Guide: Everything You Need to Know About Self-Petitioning

By Natalie McQuilkin 

If you’re a foreign national who has done any research on how to work and live in the United States permanently, you know that some pathways, like the EB-3, require you to have a PERM Labor Certification. To get the PERM Labor Certification, you need an employer to petition you, which can create a lot of anxiety for some hoping to create a life in the U.S.  

Although employer-based pathways do provide job security, which is absolutely a plus, finding an employer can be a time-consuming process. Not only do you need to find a company willing to hire you, but one that will also take the extra step of petitioning for you to enter the U.S.  

There are plenty of other self-petition pathways, like the EB-1, EB-4, and EB-5. However, these employment-based visas can seem out of reach for many foreign nationals because of their eligibility requirements. The EB-1 visa is designed for those with extraordinary ability in the sciences, arts, business, or athletics, the EB-4 is reserved for “special immigrants,” like religious workers or retired employees of international organizations, and the EB-5 accommodates those who invest about $1 million in a new business in the U.S.  

If you don’t fall under any of these self-petition categories, however, there is still hope. You might qualify for the EB-2 National Interest Waiver (NIW) – an employment-based green card reserved for those with an advanced degree or those with exceptional ability in the arts, sciences or business.  

What is the EB-2 NIW? 

The EB-2 NIW is an employment-based green card designed for those with a graduate degree, a bachelor’s degree plus five years of professional experience, or “exceptional ability” in the arts, sciences, or business. There is also an EB-2 category that requires a Labor Certification, meaning you need an employer to sponsor you and offer you a job in the U.S.  

If you apply for the EB-2 NIW, you will need to apply for the National Interest Waiver, which requires you to show how your profession and/or exceptional ability is important and beneficial to the United States. USCIS will review this waiver to determine if your profession or exceptional ability is worthy of waiving the requirements of a job offer and labor certification.  

By eliminating the job offer and labor certification requirements, the National Interest Waiver gives you the green light to self-petition. Once you are approved for the EB-2 NIW, you can apply for a green card, allowing you to live and work in the U.S. legally. However, if you are applying from abroad, you will be sent your green card upon entering the U.S. 

Let’s break down this employment-based green card’s requirements further so you can see if you’re eligible. 

What are the eligibility requirements for the EB-2 NIW? 

As mentioned above, the EB-2 NIW caters to foreign nationals who have an advanced degree (like a master’s or doctorate degree), a bachelor’s degree plus five years of experience, or “exceptional ability” in the arts, sciences, or business. USCIS explains that exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” For example, a mental health worker who has been awarded for outstanding counseling and therapy could fall under the “exceptional ability” requirement. 

When applying for the EB-2 NIW visa, you must be able to provide proof that you have an advanced degree, a bachelor’s degree plus five years of experience, or exceptional ability. If you fall under the exceptional ability category, you must be able to provide three of the following pieces of evidence to provide documentation: 

• An academic record detailing your degree, diploma, or certification from a college, university, school, or other institution 
• Letters of recommendation from current or former employers documenting at least 10 years of experience 
• A license or certification to practice your profession 
• Membership in a professional association 
• Recognition for your achievements in your field from peers, government entities, and/or professional or business organizations 
• Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability 

To fulfill the National Interest Waiver requirement, you’ll need to prove that your role fulfills the following three “prongs”: 

• Your work has substantial merit and is nationally important to the U.S. 
• You have the knowledge and ability to work in your role in the U.S. 
• It would be beneficial for the U.S. to waive a job offer and labor certification because it is evident your work will benefit the country 

One of the great things about the EB-2 NIW is that it’s not limited to one specific field. In our past blog posts on the EB-2 NIW, we highlighted how the EB-2 NIW can be applied to a range of fields, from restaurant owners to ESL teachers. Here are a few real-life examples of cases from different fields that have been approved for an EB-2 NIW: 

In 2014, a PhD student researching non-invasive and forensic genetics for wildlife conservation was approved for the EB-2 NIW. The student was part of five professional wildlife organizations, had published five articles, and had presented at 20 conferences. They were invited to speak at five events, and their work had been cited nine times. They presented 12 recommendation letters.  

In December 2016, a consultant for veterans’ services was approved for the EB-2 NIW. In their affidavit, the consultant explained they planned to improve veterans’ services in the U.S. by working with nonprofit and governmental groups. 

A mobile processor software developer and entrepreneur was approved for the EB-2 NIW in April 2020. His affidavit explained he wanted to “continue his work as an entrepreneur in the field of mobile technology” and enhance software for emergency mobile broadcasting services, according to Tigris Legal PLLC. 

What is the application process for the EB-2 NIW? 

Once you’ve determined that you meet all the requirements for the EB-2 NIW, you can start applying for the EB-2 NIW.  

The first step is to file the Form I-140 (Petition for Alien Workers) and the National Interest Waiver. For the past several years, this form has cost $700, but the filing fee will be increasing to $715 April 1, 2024, due to USCIS changing several filing fees. As of February 2024, it’s taking the Nebraska Service Center five months to process the EB-2 NIW and the Texas Service Center eight months, according to USCIS. 

The second step of applying for the EB-2 NIW will differ depending on where you live

If you’re living in the U.S., you can file Form I-485 (Application for Adjustment of Status). This form costs $1,225 as of February 2024 but will increase to $1,440 on April 1, 2024, for the same reason mentioned above. You will have to cover the costs of a medical exam, and you will have to have your biometrics recorded, which costs $85. 

If you live outside of the U.S., you do not file the I-485. You pay an immigrant fee, which is increasing from $220 to $235 on April 1. After paying the immigrant fee, you are mailed your green card. Delaying to pay this fee only delays when you receive it. 

What are the benefits of the EB-2 NIW? 

At the beginning of this post, we highlighted a major benefit of the EB-2 NIW: the ability to self-petition. Let’s discuss that further here.  

By self-petitioning, you don’t have to seek out a U.S. employer who 1. is willing to hire a foreign national, 2. is willing to petition a foreign national, and 3. is willing to undergo the lengthy and expensive PERM Labor Certification process. 

Self-petitioning allows you to have the flexibility to put your future in your own hands

Although you will have to cover the filing fees for your application, for many, these costs outweigh the stress of having to find a U.S. employer to provide them with stable, full-time employment in the United States. 

There are many other benefits that come with applying for and receiving the EB-2 NIW, including shorter processing times. Because the EB-2 NIW eliminates the need for an employer to file a PERM Labor Certification on your behalf, the EB-2 NIW has a much shorter processing time than the EB-2 pathway. Having a PERM Labor Certification approved can take more than a year, according to the U.S. Department of Labor. There is also an option for premium processing, which means you can pay an additional $2,805 when filing your EB-2 NIW application to have your application reviewed within 15 business days. 

The most obvious and beneficial perk of the EB-2 NIW is the ability to obtain a green card for yourself and your family. Once you have received your EB-2 NIW, you can apply to become a lawful permanent resident (LPR). After being a for five years, you can apply to naturalize as a U.S. citizen. Or, if you’ve been an LPR for three years and are married to a U.S. citizen, you can apply for citizenship in just three years.  

Should I work with an immigration attorney for my EB-2 NIW case? 

Ultimately, it’s up to you if you want to submit your EB-2 NIW application on your own or if you want to work with an attorney on your case. It’s important to keep in mind that one of the challenges of the EB-2 NIW is creating an argument that supports how your occupation or exceptional ability is beneficial and of national importance to the United States. In fact, according to Tigris Legal, some examples of EB-2 NIW cases that were denied in recent years include an attorney, a university instructor, an aerospace engineer, and a physician. Although on the surface, it doesn’t seem like these foreign nationals would have issues obtaining the EB-2 NIW, USCIS found that their cases did not offer “contributions of value” that would benefit the U.S. It’s in USCIS’ hands to determine if you meet the three prongs of the National Interest Waiver, and having an immigration attorney on your side can strengthen your case. 

Proving that your professional and/or exceptional ability can be a difficult task to manage on your own. Eagan Immigration’s senior business attorney Hannah Whaley is experienced with writing EB-2 NIW affidavits. In these affidavits, she creates arguments detailing why your profession and/or ability fulfills the three prongs. She uses extensive research to back up her unique, creative arguments. 

Additionally, having an attorney’s help can make the application process go smoothly. Your attorney can keep you updated on the processing times, required fees, and more. 

If you’re interested in applying for the EB-2 NIW, or if you’re a higher education student interested in how you can get prepared to apply for this employment-based green card, you can contact Eagan Immigration’s office at (202) 709-6439 or click this link to get in contact with Attorney Whaley.  

References 

Employment-Based Immigration: Second Preference EB-2, USCIS, last updated: Apr. 20, 2022, Employment-Based Immigration: Second Preference EB-2 | USCIS, (last visited: Feb. 26, 2024). 

Approved examples in EB2 NIW, Green Card for A PhD Or Postdoc, Approved examples in EB2 NIW | Green card for PhD holders or Postdocs, self petition, national interest wavier (EB2-NIW), extraordinary ability (EB1A), (last visited: Feb. 26, 2024). 

Akiko Yamada, Esq. What Type of EB-2 NIW Cases are Approved or Denied? Tigris Legal PLLC, Dec. 5, 2023, What Type of EB-2 NIW Cases are Approved or Denied? (attorneyforusimmigration.com), (last visited: Feb. 26, 2024). 

Processing Times, USCIS, Processing Times (uscis.gov), (last visited: Feb. 26, 2024). 

Processing Times, U.S. Department of Labor, last updated: Jan. 31, 2024, Processing Times | Flag.dol.gov, (last visited: Feb. 27, 2024). 

Request for Premium Processing Service, USCIS, last updated: Feb. 26, 2024, Request for Premium Processing Service | USCIS, (last updated: Feb. 26, 2024). 

Paige Monachino, USCIS Increases Filing Fees Effective April 1, 2024, Feb. 13, 2024, Hodgson Russ LLP, 4598_USCIS Increases Filing Fees Effective April 1, 2024.pdf (hodgsonruss.com), (last visited: Feb. 26, 2024).