Which Jobs or Occupations Qualify for the EB-2 National Interest Waiver(NIW)?

What Professions Qualify for the EB-2 NIW?

EB-2 visas are second-preference employment visas.  Many foreign nationals find these visas attractive because they provide a path to permanent residency, allow them to bring their spouse and children to the United States, and can be obtained relatively quickly.  However, a standard EB-2 visa requires a job offer from a U.S.-based employer.  This employer must file the petition on behalf of the foreign national and undergo the Labor Certification process.  As an alternative, many foreign nationals choose to self-petition through the EB-2 National Interest Waiver (NIW) process.

What Is the EB-2 NIW?

The EB-2 NIW visa recognizes that it may be in the “national interest” of the United States to waive the job offer and Labor Certification process for some foreign nationals.  In these cases, a foreign national can self-petition for an EB-2 NIW visa.  These visas are often approved more quickly than standard EB-2 visas because the petitioner does not need to go through the lengthy Labor Certification process.  However, because the United States Citizenship and Immigration Services (USCIS) often scrutinizes these petitions more closely, any foreign national considering an EB-2 NIW visa should consult with a seasoned NIW lawyer.

Who Qualifies for an EB-2 NIW?

EB-2 visas are generally available to foreign nationals who have an advanced degree or the equivalent in professional fields, or to those who have exceptional ability in the sciences, arts, business, or athletics.  For purposes of an EB-2 visa, an advanced degree is any degree above a bachelor’s degree, or the foreign equivalent.  Alternatively, a bachelor’s degree combined with at least 5 years of progressive experience will be sufficient to meet the advanced degree requirement.  To show exceptional ability, a petitioner must have a degree of expertise above that ordinarily encountered in his or her field.

A foreign national who meets these criteria, holding an advanced degree or having an exceptional ability, may qualify for an EB-2 visa. To obtain an EB-2 NIW visa, the foreign national can either self-petition or an employer can petition on his or her behalf.

Is the EB-2 NIW Limited to Certain Professions?

A professional in any field may qualify for an EB-2 NIW visa.  The key is to meet the qualifications set forth by USCIS.

For foreign nationals holding an advanced degree, the petitioner must have either a U.S. academic or professional degree or an equivalent foreign degree that is above a bachelor’s degree, such as a master’s degree or a Ph.D.  Alternatively, five years of experience combined with a bachelor’s degree may be substituted.  However, for certain professions that customarily require a doctoral degree, the petitioner must have a U.S. doctorate degree or the foreign equivalent.

For aliens with exceptional ability, a petitioner must document at least three of the following to show that he or she qualifies:

1. An official academic record showing that the foreign person has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
2. Evidence in the form of letters from current or former employers showing that the foreign person has at least 10 years of full-time experience in the occupation;
3. A license to practice the profession or certification for a particular profession or occupation;
4. Evidence that the foreign person has commanded a salary or other remuneration for services that demonstrate exceptional ability;
5. Evidence of membership in a professional association; or
6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities or professional or business organizations.

Once a foreign national meets one of these two tests, he or she must then meet the three-prong test set forth by USCIS in Matter of Dhanasar.  This requires him or her to prove the following:

1. The proposed endeavor is of substantial merit and national importance;
2. The foreign national is well-positioned to advance the proposed endeavor; and
3. On balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements of the EB-2 category.

Any foreign national who meets these qualifications may apply for and be granted an EB-2 NIW.  While the visa process is intended for those with advanced degrees and/or exceptional abilities, it is not limited to any particular profession.  Anyone who meets the EB-2 visa criteria and the National Interest Waiver criteria may be eligible for this visa, regardless of profession.

Accordingly, there are a wide variety of occupations that can be utilized for the EB-2 NIW if the criteria are met including (but not limited to) the following: researcher, scientist, artist, animator, musician, singer, physician, dentist, pilot, entrepreneur, engineer, designer, lawyer, therapist, economist, professor, business person, veterinarian, nurse, pharmacist, urban planner, consultant, manager and architect. While this is by no means an exhaustive list, it must also be noted that merely because a petitioner works in one of these roles does not necessarily make them eligible for the EB-2 NIW. Instead, they must demonstrate their unique position and how it serves the national interest.

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