What is the EB-2?
The EB-2 is an employment-based preference group which covers individuals of the professions holding an advanced degree, or its equivalent, or foreign nationals of exceptional ability. An advanced degree can be demonstrated through possession of an actual advanced degree (Master’s, Doctorate, Juris Doctor) or Bachelor’s degree plus five (5) years of progressive work experience in the field. Exceptional ability requires a showing that you have “a degree of expertise significantly above that ordinarily encountered” in your field of endeavor.
If you are applying under the EB-2 preference group, the application must usually be accompanied by an approved Application for Permanent Employment Certification from the Department of Labor on ETA Form 9089. The Department of Labor process of the EB-2 requires two steps:
Prevailing Wage Determination (ETA Form 9141). This application takes approximately 130 days to process; and
Permanent Employment Certification (ETA Form 9089, known as “PERM”). This application takes approximately 175 days for adjudication and requires an employer to recruit for the position and, among other things, interview applicants who are minimally qualified and have a valid business reason to reject applicants other than yourself.
Only after these steps are completed can you then file Form I-140 (your employer’s petition with proof of ability to pay the prevailing wage) and a Form I-485 application (your application for permanent residency, which is what gives rise to the work and travel permit) with United States Immigration and Citizenship Services (USCIS).
What is the National Interest Waiver (NIW)?
One important component of the EB-2 is the availability to also apply for the National Interest Waiver (NIW). The NIW is a request to waive the above-noted two steps with the Department of Labor. In other words, if you qualify for the NIW you do not need a sponsoring employer or job offer and, if immigrant visas are available, you may immediately file your applications with USCIS. Because the requirement of a job offer and, therefore, the PERM process, would be waived, the U.S. government takes a hard look at these cases. After all, an applicant for an NIW is affirmatively stating that it is in the national interest of the United States to admit them for permanent residency, without a job.
While this process is considerably timesaving, the NIW also has its own legal requirements. Importantly, the NIW has three specific requirements (even if you are attempting to qualify as an advanced degree professional and not as a foreign national of exceptional ability):
The proposed endeavor has both substantial merit and national importance;
You are well positioned to advance the proposed endeavor; and
It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.
Each requirement for EB-2 and NIW has its own criteria and should not be confused to be equal. This can lead to unforeseen denials and irreparable damages, such as being prevented from applying for future changes of status to other categories, or worse yet, being placed into removal proceedings. Even if you are statutorily eligible according to the above criteria, this does not mean your case will be automatically approved. Instead, you still must satisfy certain standards imposed by caselaw and demonstrate that you merit a favorable exercise of government discretion.
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