NIW is only available in the EB2 category, which means it can only be available to (1) professionals with advanced degrees or (2) aliens with exceptional ability in the sciences, arts, or business.

In addition, USCIS has expanded the use of NIW to inventors, researchers, and founders of startup enterprises who otherwise would not have qualified for NIW. Therefore, startup founders and entrepreneurs may qualify for a green card through NIW (National Interest Waiver) as well.

Athletes may be considered workers of exceptional abilities in the arts.

EB2 ELIGIBILITY CRITERIA

• Qualifying for EB2 through Advanced Degree

EB2 Advanced Degree Eligibility: To qualify for this immigrant classification as a professional with an advanced degree, the Applicant must be a member of the professions holding an advanced degree or foreign equivalent degree.

Merely possessing an advanced degree or its equivalent is not sufficient. The Applicant must demonstrate that the position requires a professional holding an advanced degree or the equivalent, and the industry as a whole, normally requires that the position be filled by a person holding an advanced degree.

An advanced degree is any U.S. or a foreign equivalent degree above baccalaureate. The Applicant may be able to meet the requirement of a master’s degree if he or she possesses a U.S. bachelor’s degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty. If the specialty typically requires a doctorate degree, the Applicant must have a U.S. doctorate or a foreign equivalent degree. Unfortunately, an applicant who does not possess at least a U.S. bachelor’s degree or a foreign equivalent degree is ineligible for the advanced degree classification.

• Qualifying for EB2 through Exceptional Abilities

To qualify for EB2 through Exceptional Abilities, the Applicant (1) must have exceptional ability in the sciences, arts, or business, and (2) the Applicant will benefit the national economy, cultural or educational interests, or welfare of the United States in the future.

The term “exceptional ability” is defined as a “degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” Therefore, the Applicant needs to demonstrate that he or she is above others in the field. However, this standard is lower than the standard for extraordinary ability classification of the EB1A classification.

EB2 Exceptional Ability Qualifying Criteria: The applicant needs to establish that he/she meets at least 3 of the following criteria:

1. Official academic record proving a degree related to your area of exceptional ability
2. Letters or other evidence confirming at least 10 years of full-time relevant employment experience in your specialty
3. A license to practice your profession or certification for your particular profession or occupation
4. Evidence of high salary or other remuneration for services that demonstrates your exceptional ability (this is usually shown by a large money award or a very high salary)
5. Membership in professional associations or organizations
6. Recognition for your accomplishments and significant contributions to your industry or field by your peers, government entities, professional or business organizations

*If the above-enumerated criteria do not normally apply to the applicant’s profession, then the applicant may present other comparable evidence.

When evaluating the EB2 NIW application, USCIS will have to determine whether the Applicant has demonstrated a degree of expertise significantly above that typically encountered in the sciences, art, or business. Therefore, the quality and caliber of qualifications are important factors in the evaluation of the Applicant’s EB2 NIW qualifications. Simply having a relevant university degree, ten years of relevant experience, and being a member of a professional organization on its own will unlikely pass the exceptional ability test.

NIW ELIGIBILITY CRITERIA

Qualification for the EB2 classification as a member of the professions holding an advanced degree or a person of exceptional ability does not automatically qualify the person for a National Interest Waiver (NIW).

To qualify for the NIW, the Applicant needs to demonstrate the following 3 things:

1. The Applicant’s proposed endeavor (i.e., work) has both (1) substantial merit and (2) national importance;
2. The Applicant is well-positioned to advance the proposed endeavor; and
3. On balance, it would benefit the United States to waive the job offer and thus the permanent labor certification requirements.

First NIW requirement: Proposed endeavor has both (1) substantial merit and (2) national importance:

• The person’s proposed endeavor should focus on what type of work the person proposes to undertake. For example, what specific projects and goals the person will undertake.
• Endeavor’s merit may be demonstrated in areas such as business, entrepreneurship, science, technology, health, education, culture, etc.
• Endeavor’s national importance can focus on economic benefit, but merit can also be established without immediate quantifiable economic impact. Applicant can show how research, the furtherance of human knowledge, etc., can translate into US economic benefit later on.
• Geographical coverage of endeavor is not always relevant, so long as the endeavor can have national importance through benefiting a particular field, such as improving manufacturing process or medical advances.

Second NIW requirement: Applicant must be well positioned to advance the proposed endeavor:

This prong centers on the person because the Applicant must demonstrate that he or she is well-positioned to advance the endeavor.

In evaluating whether the person is well-positioned to advance the endeavor, USCIS considers various factors, including:

• The person’s education, skills, expertise, and record of success in the field;
• A prototype or procedure the person created or played a significant role in creating;
• The progress achieved towards the proposed endeavor; and
• The interest or support received by the person from potential investors, customers, users, or other relevant entities or persons.

Importantly, a person may be well-positioned to advance their endeavor even if the person can’t demonstrate that the proposed endeavor is more likely than not to ultimately succeed.

Examples of documents that tend to show the person is well-positioned to advance a proposed endeavor:

• Relevant degrees, certificates, or professional licenses;
• Copyrights, patents, or trademarks developed by the Applicant;
• Letters of recommendation from experts in the person’s field, describing the person’s past achievements and providing specific examples of how the person is well-positioned to advance the proposed endeavor;
• Published articles or major media about the person’s achievements or work;
• Evidence of strong citation history of the person’s published articles;
• Evidence that the person’s work has influenced their field of endeavor;
• A detailed plan describing how the person will continue the proposed work in the United States;
• A detailed business plan or other description;
• Affidavits from prospective or potential employers, clients, or customers;
• Evidence reflecting feasible plans for financial support (typically related to financing for entrepreneurs);
• Evidence of investment from U.S. investors, such as VCs, angel investors, or accelerators, and that the investment amounts are reasonable to the relevant endeavor;
• Contracts, agreements, or licenses demonstrating the potential impact of the proposed initiative;
• Letters from U.S. government agencies or quasi-governmental entities demonstrating the person is well-positioned to advance the proposed endeavor;
• Awards, grants, or other indications of relevant non-monetary support the Applicant received from federal, state, or local government entities with expertise in economic development, research and development, or job creation;
• Evidence showing how the person’s work is being used by others, including contracts with companies using the products developed by the Applicant or the Applicant assisted in developing; Documents showing the person invented technology or contributed to inventing it, and how others use that technology; Patents or licenses for inventions the person developed with documentation showing why the patent or license is important to the field.

Third NIW requirement: On balance, it would be beneficial to the United States to waive the job offer and the permanent labor certification requirements.

In establishing eligibility for the third prong, Applicants may provide evidence relating to one or more of the following factors:

• Labor certification application would be impractical;
• The benefit from the Applicant’s contributions to the United States; and
• The United States’ interest in the person’s contributions is sufficiently urgent.

More specific examinations may include:

• Urgency (for example, public health or safety) warrants foregoing the labor certification process;
• Whether the person’s initiative has the potential to generate considerable revenue; and
• Whether the person’s initiative may lead to potential job creation.