What is the EB2-NIW? We have frequently heard this question in our office over the past few months. Given the great popularity this immigration visa category has gained among Brazilians, it is important to clarify its basic principles.
The permanent immigration visas “EB” (Employment-Based) have five main categories, with some subcategories. The EB2 (Second Preference) is reserved for people with advanced degrees (master’s, doctorate, etc.) or equivalent; or for individuals whose exceptional abilities in the sciences, arts, or business will benefit the United States. This type of visa normally requires the labor certification process, where an employer opens the position to the market and, in the absence of qualified candidates, receives certification from the Department of Labor, authorizing them to hire the foreigner.
However, a subcategory of the EB2 visa exempts the foreigner from this often lengthy process. This subcategory is the “National Interest Waiver” or NIW. In other words, the law exempts the foreigner from the need to have an employer and the labor certification requirement if – and only if – they can demonstrate that their work in the United States will serve the national interest – and not just the interest of the foreigner, a small group, or a company.
The big misconception about the EB2-NIW is that if the foreigner has a master’s or doctorate degree, they automatically qualify; if they meet three criteria that make them “exceptional” in their field, they are also eligible for the visa. This would be almost true if the foreigner were entering the process through labor certification. However, for the NIW, meeting these initial criteria is only the entryway to the EB2 – the minimum qualification. To benefit from the national interest waiver, the foreigner has the arduous task of proving, through very persuasive and robust evidence, that their work in the United States is important to the country. This analysis is guided by a recent precedent, the Matter of Dhanasar, decided at the end of 2016.
In Dhanasar, the Administrative Appeals Office of immigration concluded that USCIS (the immigration agency) may grant the national interest waiver if the foreigner demonstrates: (1) that their proposed endeavor has substantial merit and national importance; (2) that they are well-positioned to advance the proposed endeavor; and (3) that it would be beneficial to the United States to waive the job offer and labor certification requirements. It should be noted that the language used is “may grant” and not “must grant” – meaning that even after establishing a strong case, USCIS has the authority to simply deny. Thus, although this visa category is extremely desirable, it is also complex.
Therefore, if you meet the minimum criteria and wish to obtain this visa, it is important to focus on your future project in the United States and dedicate time to researching and strategically planning a project that is sufficiently interesting and important to the country. Something that not only opens the doors of the EB2 for you and your family but also allows you to come and contribute meaningfully to the growth of the country. The EB2 is an excellent path to permanent residency in the United States, but it must be planned with great dedication. Your future project is the heart of the petition, and you also need to demonstrate your capability and aptitude to carry out this project with excellence. Since it is a visa that depends 100% on persuasion, a risk analysis with an immigration attorney should be conducted before submitting an EB2 NIW petition, especially if adjusting status simultaneously.
