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Portions of the content on this page are available as public information on the USCIS website.

Criteria for Eligibility

The employment-based, second preference visa (EB-2) is available to individuals who are members of the professions holding an advance degree or its equivalent, or a foreign national who has exceptional ability.

Specifically, foreign nationals seeking a national interest waiver are requesting to waive the Labor Certification Process because it is in the interest of the United States. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them).

Exceptional Ability Criteria – 8 C.F.R. 204.5(k)(3)

The foreign national must demonstrate exceptional ability in the sciences, arts, or business. This is shown by meeting at least 3 of the criterial below:

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
  • Letters documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Other comparable evidence of eligibility is also acceptable.

National Interest Waiver Criteria (Matter of Dhansar, 26 I&N Dec. 884 (AAO 2016))

In addition to providing evidence of an advanced degree or exceptional ability, the foreign national must also meet the 3 National Interest Waiver criteria (otherwise known as the Dhanasar  factors) in order to demonstrate that it is in the national interest that USCIS waive the requirement of a job offer, and thus the labor certification.

  • The proposed endeavor has both substantial merit and national importance.
  • You are well positioned to advance the proposed endeavor.
  • It would be beneficial to the United States to waive the requirement of a job offer, and thus the labor certification.

Application Process

To qualify for an EB-2 NIW visa, the foreign national can file an immigrant petition on his or her own behalf. Once approved, if the foreign national is inside the United States in a valid visa status, they are able to file an application to change their nonimmigrant status to permanent resident status when they become eligible for an immigrant visa (based on their country of birth and specific immigrant visa category).

If the foreign national is outside of the United States, they can proceed with Immigrant Visa processing through a U.S. Embassy or Consulate abroad. The foreign national can enter the United States as a lawful permanent resident upon approval of their immigrant visa and availability of visas (based on country of birth and specific immigrant visa category).

Family of EB-2 NIW Visa Holders

Spouses and unmarried children under the age of 21 of foreign nationals of approved EB-2 NIW visas are eligible to apply for lawful permanent residence.

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