National Interest Waiver (NIW)
Are You Eligible for an NIW Green Card?
To qualify for an EB-2 NIW Green Card, you must pass [Step 1: the General EB-2 Eligibility Test] and [Step 2: the National Interest Waiver Test].
Step 1: Eligibility Test
You can pass the EB-2 Eligibility Test by satisfying 1 of the following two criteria:
You have an advanced degree (Master's or Ph.D Degree) or its equivalent (Bachelor's Degree and 5 years of experience); or
You have demonstrated exceptional ability in your field.
Do you pass Step 1?
Let's go to Step 2.
Step 2: NIW Test
After passing the EB-2 Eligibility Test, you must also satisfy all 3 elements of the National Interest Waiver test, which are:
Your proposed work has both substantial merit and national importance;
You are well-positioned to advance your proposed work; and
When balancing all the factors, it would be in the national interest of the U.S. to grant you a waiver of the normal job and labor certification requirements.
If you pass Step 1 and Step 2, you will be eligible to get a NIW green card.
What is the NIW Green Card Application Process?
To obtain an NIW Green Card, you file I-140 and receive the approval of I-140. And, you file an I-485 Adjustment of Status Application and receive the approval of I-485.
There are two application filing strategies available, Concurrent Filing or Separate Filing.
If you have a strong NIW profile, you can choose to file your I-140 Immigrant Petition and I-485 Adjustment of Status Application together (also called "concurrent filing").
Your EB-2 priority date must be current to file your I-485 Adjustment of Status Application together with your NIW I-140.
For example, if you were born in India or China, you cannot do a concurrent filing since EB-2 priority dates for India and China typically are not current in the U.S. Department of State’s Visa Bulletin. You must wait for your EB-2 priority date to become current before you can file your I-485 Adjustment of Status Application. If you were born in South Korea, the EB-2 priority date is current and you can file I-485 with I-140.
If there is some uncertainty regarding the strength of your NIW profile, you can choose to file your NIW I-140 Immigrant Petition first, and then once it is approved, you can file your I-485 Adjustment of Status Application assuming your EB-2 priority date is current.
What are the big Benefits of Applying for NIW?
Employer Sponsorship is Not Required:
You can file an NIW Green Card application independently without sponsorship from your employer.
A Specific Offer of Employment is Not Required:
You can file an NIW Green Card application
even if you do not have a job offer from a U.S. employer.
PERM Labor Certification is Not Required:
Unlike most other Employment-Based Green Card categories, you do not need to go through the PERM Labor Certification process to show a shortage of U.S. workers in the labor market for your occupation to be eligible to file an NIW Green Card application.
Less Strict Eligibility Criteria as Compared to EB-1A:
Compared to the EB-1A Green Card eligibility requirements, which require you to present compelling documentation satisfying 3 of the 10 "extraordinary ability" criteria, the NIW Green Card eligibility requirements are less burdensome. As a result, USCIS approval rates for NIW Green Card applications are significantly higher than EB-1A Green Card applications.
I was Born in India or China. Does Filing an NIW Green Card Application Provide Me with Any Benefits?
Even though a Green Card may not be available to you in the near term future because of the EB-2 Visa Bulletin backlogs for individuals born in India or China, there may still be advantages you can gain by filing an NIW Green Card application and obtaining an NIW I-140 Immigrant Petition approval, including:
Your NIW I-140 approval can be used to support H-1B extensions beyond the normal six-year limitation;
Your NIW I-140 approval can be used to support an application for H-4 work authorization for your spouse; and
Your NIW I-140 approval can give you the ability to transfer your I-140 priority date to another future I-140 Immigrant Petition filed under a different category.
Can NIW use Premium Processing?
It depends on your case.
USCIS to Implement Premium Processing for Certain Previously Filed EB-1 and EB-2 Form I-140 Petitions (2022)
USCIS is implementing premium processing for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. This expansion of premium processing only applies to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW). Petitioners who wish to request a premium processing upgrade must file Form I-907, Request for Premium Processing Service.
The expansion will occur in phases:
Beginning June 1, 2022, we will accept Form I-907 requests for E13 multinational executive and manager petitions received on or before Jan. 1, 2021.
Beginning July 1, 2022, we will accept Form I-907 requests for E21 NIW petitions received on or before June 1, 2021, and E13 multinational executive and manager petitions received on or before March 1, 2021.
As the expansion of premium processing is being implemented in a phased approach, we will continue working towards premium processing availability of additional Form I-140 petitions, Form I-539 and Form I-765 in fiscal year 2022. USCIS will also adhere to the congressional requirement that the expansion of premium processing must not cause an increase in processing times for regular immigration benefit requests.
USCIS will reject premium processing requests for these Form I-140 classifications that are filed before their start date of June 1, 2022, or July 1, 2022. USCIS has 45 days to complete premium processing for these newly included Form I-140 classifications. We will not accept new (initial) Forms I-140 with a premium processing request at this time.
USCIS will reject premium processing requests for these classifications that are filed before their start date of June 1, 2022, or July 1, 2022. We will not accept new (initial) Forms I-140 with a premium processing request at this time.
Will My Spouse and Children Also Get a Green Card?
Yes. Your spouse and children under age 21 will also be able to file I-485 Adjustment of Status Applications once your EB-2 priority date is current as part of your NIW Green Card application process, which will allow them to receive their own Green Cards.
What are the Filing Fees for NIW?
I-140 Filing Fee: $700
I-485 Filing Fee for Principal Applicant: $1,225
I-485 Filing Fee for Dependent Spouse and/or Child over age 14: $1,225 each
I-485 Filing Fee for Dependent Child under age 14: $750 each
What are the Attorney Fees for NIW?
I-140 Attorney Fee
I-485 Attorney Fee
The attorney fees are flat fees that cover all legal services provided in NIW case.
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