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EB-2 National Interest Waiver

What are EB-2 visas? 

EB-2 visas allow certain qualified individuals to permanently come to the United States for employment. Typically, employers must lead the application process for EB-2 visa applicants to seek entry from their advanced degree or exceptional ability. Under the National Interest Waiver, some EB-2 visa applicants are eligible to file their own application without a job offer or labor certification, if they meet certain requirements. 

What is the EB-2 National Interest Waiver?

Under the National Interest Waiver, foreign nationals can seek permanent employment in the United States through a “self-petition,” without a potential employer leading the application process. Instead of having an employer lead the application process, a National Interest Waiver applicant must establish certain requirements in order to be granted a waiver. 

Who qualifies for each type of EB-2 visa?

Instead of verifying eligibility through an advanced degree or exceptional ability, an EB-2 applicant under the National Interest Waiver must meet three requirements: substantial merit and national importance, individual qualifications, and benefit to the United States. A National Interest Waiver applicant must demonstrate that he or she meets these requirements to United States Citizenship and Immigration Services (USCIS). 

  • First Requirement: Substantial Merit & National Importance

To receive a National Interest Waiver, an applicant must first prove that the business or employment endeavor the applicant seeks in the United States is one that has substantial merit and national importance in areas such as business, entrepreneurialism, science, technology, culture, health, or education, among others.

In order to have substantial merit, it is not required that the applicant’s proposed endeavor have significant economic impact, though this may be favored. On the other hand, endeavors that seek to further human knowledge of societal benefit may qualify despite not having significant economic benefit. 

An endeavor is deemed to have national importance if its potential prospective impact has national or global implications in the applicant’s particular field. However, there is no geographic limitation when determining the national importance of the applicant’s endeavor. An endeavor may have profound impact in one locale and still be deemed to have national importance. 

  • Second Requirement: Individual Qualifications to Advance Proposed Endeavor

National Interest Waiver applicants must be able to show that they are well positioned to advance their proposed endeavor. 

When determining whether an applicant is well positioned, the applicant’s education, skills, knowledge, and record of success in related or similar effort will be considered, among other factors. Whether or not the applicant has a model or plan for future activities and has made any progress toward achieving the proposed endeavor will also be considered. The interest of potential customers, users, investors, or other relevant entities or individuals will also be evaluated. 

Under this requirement, applicants are not required to demonstrate that their endeavors are more likely than not to ultimately succeed, but must establish by a preponderance of the evidence that they are well positioned to advance the proposed endeavor. 

  • Third Requirement: Benefit to the United States

Under the third requirement, the applicant must demonstrate that, on balance, it is beneficial to the United States to waive the usual requirements of a valid job offer and labor certification.

The USCIS will evaluate whether, in light of the applicant’s qualifications or proposed endeavor, it would be impractical for the applicant to secure a job offer or obtain a labor certification. Then, the USCIS will evaluate whether the United States would benefit from the applicant’s contributions, despite his or her inability or impracticability in seeking a job offer and labor certification. 

What is the process for obtaining an EB-2 visa? 

The application process for the National Interest Waiver is led by the individual applicant. The application process is through the United States Citizenship and Immigration Services (USCIS).

Under the National Interest Waiver, an applicant may forgo the United States Department of Labor’s Foreign Labor Certification Process required of other EB-2 visa applicants. This can save an applicant time and stress if they qualify for a waiver. 

Instead of having an employer-led application process and required labor certification, an applicant for the National Interest Waiver EB-2 visa must complete and sign Form ETA-750B and Form I-140 according to the forms’ instructions. Both forms are submitted to the USCIS with the applicable filing fees and documentary evidence showing the applicant meets the advanced degree or exceptional ability qualifications.

At the same time an applicant submits the forms, identifying documentation and additional documentation must be submitted in order to demonstrate the applicant meets all three requirements for the National Interest Waiver.

A major component for proving the applicant meets the three waiver requirements is letters of recommendation from individuals in the applicant’s field of work who lend their own credibility to account for the applicant’s qualifications.

The documentation required to be submitted includes: 

  • Form I-140 
  • Form ETA 750B
  • Letters of recommendation 
  • Petition letter 
  • Affidavits from leaders in applicant’s field
  • Proof of 2+ years of experience in the area
  • Documentation demonstrating that forgoing labor certification would benefit the national interest
  • Evidence of past achievements and recognition
  • An updated resume 
  • Evidence of memberships, publications, and other articles or conferences
  • If the applicant does not have an advanced degree, he or she may need to prove exceptional ability related to his or her proposed endeavor: 
    • Letters from past or present employers showing the applicant has at least 10 years of experience working his or her field full-time
    • Evidence of the applicant’s exceptional salary suggesting his or her ability
    • Licenses or certification that permit the applicant to practice in his or her field
    • Membership in an association of professionals that requires exceptional ability to maintain membership
    • Other applicable documentation suggesting exceptional ability in lieu of an advanced degree

Premium Processing 

Premium processing is not available for National Interest Waiver applicants.

Applicants Already Inside the United States 

National Interest Waiver EB-2 visa applicants already in the United States at the time they apply must file Form I-485 to change their visa status along with Form I-140. The Form I-485 changes a visa holder’s status under one visa to a new status under the EB-2 visa. Both the Form I-485 and the Form I-140 are submitted to the USCIS.

Applicants Outside the United States 

National Interest Waiver EB-2 applicants who are outside of the United States must also submit the online Form DS-261 application. These applicants must also schedule an interview with the U.S. Embassy or Consulate near them. At their interview, applicants will be required to have their biometrics taken and will be asked questions about the applicant’s background, experience, and interest in coming to the United States permanently. Applicants must bring the following items to their interview: 

  • Copy of printed Form DS-261; 
  • Copy of Form I-140; 
  • A valid passport;
  • A photo conforming to the United States Department of State’s photo requirements;
  • Evidentiary documents proving the applicant’s qualifications; 
  • Approved PERM Labor Certification;
  • The applicant’s CV or resume;
  • An affidavit of support from the applicant’s employer

How much does it cost to get an EB-2 visa? 

  • The Form I-140 filing fee is $700.
  • The Form I-485 filing fee is $750-$1,450, dependent on the applicant’s age. 
  • The biometrics fee for overseas applicants is $85.
  • The Form DS-261 filing fee for overseas applicants is $445.
  • The affidavit of support for overseas applicants is $88.
  • The premium processing fee (available for EB-1A & EB-1B visas) is $1,440. 

Family of EB-2 visa holders

The spouse or unmarried children under 21 years of age may accompany the EB-2 visa holder in the United States. The family member(s) must apply to accompany the visa holder in the United States at the same time or after the EB-2 visa holder applies. 

How long are EB-2 visas valid? 

The EB-2 visas are valid for 10 years and renewable thereafter. The EB-2 visas allow workers to permanently work in the United States. 

Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.