EB-2 NIW Eligibility

Discover if you qualify for the EB-2 NIW green card without employer sponsorship or job offer.

Eligibility Test for an EB-2 NIW Green Card?

If you're looking to qualify for an EB-2 NIW (National Interest Waiver) Green Card, you'll need to pass both the General EB-2 Eligibility Test and the National Interest Waiver Test. These two stages form the foundation of determining whether you're eligible for this unique green card category that doesn't require employer sponsorship or a specific job offer.

Step 1: General EB-2 Eligibility Test

To pass the General EB-2 Eligibility Test, you must meet one of the following two criteria:

Advanced Degree: You possess a master's or doctorate (Ph.D.) degree, or its equivalent (such as a bachelor's degree with at least five years of progressive experience in your field).
Exceptional Ability: You have demonstrated exceptional ability in your field, meaning your expertise is significantly above the norm for your profession.

Most individuals applying for the NIW Green Card can easily pass this initial test if they possess an advanced degree or an equivalent qualification. Exceptional ability applicants need to provide substantial evidence of their unique qualifications.

Step 2: The National Interest Waiver Test

If you pass the General EB-2 test, you must also pass the National Interest Waiver Test, which consists of three elements:

Substantial Merit and National Importance: Your proposed work must have intrinsic value and benefit to the U.S. Examples include contributing to key areas like healthcare, technology, or economic development.
Well-Positioned to Advance the Work: You must show that you are in a good position to further your proposed work. This could involve your education, professional background, or a strong track record in your field that proves you are capable of making a significant contribution.
National Interest: The U.S. must benefit by waiving the normal job offer and labor certification requirements. This is assessed by balancing your contributions against potential effects on the U.S. labor market.

These criteria are based on a 2016 precedent set by the Matter of Dhanasar decision, which outlines how U.S. Citizenship and Immigration Services (USCIS) evaluates NIW applications.

The path to obtaining an NIW Green Card involves two main steps:

I-140 Immigrant Petition: This petition establishes your eligibility for the EB-2 NIW category. You will need to include documentation supporting your qualifications and national interest.
I-485 Adjustment of Status: Once your I-140 petition is approved (or concurrently filed, depending on your case), you will file the I-485 to adjust your status to that of a lawful permanent resident.

Filing Strategies

There are two main approaches to filing an NIW application:

Concurrent Filing: If you have a strong case and your EB-2 priority date is current (this depends on your country of birth), you can file both the I-140 Immigrant Petition and the I-485 Adjustment of Status Application at the same time.
Separate Filing: If there is uncertainty regarding the strength of your application, you might choose to first file the I-140 petition. After it is approved, you can file the I-485 once your priority date becomes current. This is especially relevant if you were born in India or China, where EB-2 priority dates often experience significant delays.

The EB-2 NIW Green Card Application Process

Key Benefits of Applying for an NIW Green Card

No Employer Sponsorship Required: Unlike other employment-based green card categories, you can file an NIW petition on your own without needing sponsorship from a U.S. employer.
No Job Offer Needed: You do not need a specific offer of employment to qualify for an NIW Green Card, making it a flexible option for professionals and researchers.
No PERM Labor Certification Required: The NIW category exempts you from the requirement to go through the complex PERM labor certification process, which typically proves a shortage of U.S. workers for the job.
Less Stringent Criteria than EB-1A: The eligibility criteria for an NIW Green Card are generally less demanding than those for an EB-1A (Extraordinary Ability) Green Card, which requires meeting 3 out of 10 criteria to prove exceptional ability. The approval rates for NIW applications are also notably higher.

Additional Benefits for Applicants Born in India or China

Although applicants from India or China face longer wait times due to priority date backlogs, there are still advantages to filing an NIW Green Card application, including:

H-1B Extensions: Once your NIW I-140 is approved, it can be used to support H-1B extensions beyond the six-year limit.
H-4 Work Authorization: An approved NIW petition can also support your spouse’s H-4 work authorization.
Transfer of Priority Date: You can transfer the priority date from your NIW I-140 to another future I-140 petition, should you decide to pursue a different green card category later on.

Premium Processing for NIW Applications

Premium processing is available for I-140 petitions, allowing applicants to receive a decision within 15 days for an additional fee. While premium processing speeds up the process, it may not always be necessary, and each applicant should carefully evaluate whether it’s beneficial in their case.

Filing Fees for an NIW Green Card Application

I-140 Petition Fee: $715
I-485 Adjustment of Status Fee (Principal Applicant): $1,225
I-485 Fee (Dependent Spouse/Child over 14): $1,225 per person
I-485 Fee (Dependent Child under 14): $750 per child

Attorney Fees (This is a general idea of attorney fees)

Attorney fees for an NIW application can vary depending on the complexity of your case:

NIW I-140 for Researchers: $7,000 (with a payment plan available over 14 months)
NIW I-140 for Non-Researchers: $15,000 (with a 15-month payment plan)
I-485 Adjustment of Status Attorney Fee: $2,250 (additional $1,750 for each dependent spouse or child)

Yes. Your spouse and any children under the age of 21 can also apply for a Green Card as part of your NIW application. Once your EB-2 priority date is current, they can file I-485 applications and receive their own Green Cards.

This breakdown of the EB-2 NIW Green Card process helps applicants understand the qualifications, benefits, and application strategies. Understanding these steps can help streamline the journey toward permanent residency.