One way to become a United States permanent resident is through employment. If you’re an entrepreneur, some paths to permanent residency may be more challenging. The good news is that the EB-2 National Interest Waiver (NIW) makes it relatively easy for many startup founders to obtain a green card.
With no PERM labor certification requirement (we’ll explain what this is in more detail later), the ability to self-petition, flexible criteria, and recent expansions for premium processing, the EB-2 NIW is a viable option!
What is the EB-2 NIW?
Commonly referred to as EB-2 NIW, this is the employment-based second preference National Interest Waiver immigrant visa.
You may also hear the term “I-140” thrown around when people talk about the EB-2 NIW. Form I-140 is the form that you file with U.S. Citizenship and Immigration Services (USCIS) to petition for permanent residency based on your employment.
Whether you are filing EB-1, EB-2 NIW, EB-2 NIW, EB-3, or any other employment-based petition, you will use Form I-140. In other words, if you hear someone mention I-140, they are likely talking about any employment-based green card petition, or perhaps the form itself.
The EB-2 NIW (along with any other I-140 petition) gets you a spot “in line” to file your actual green card application (Form I-485). You can file the EB-2 NIW and green card application at the same time, or you can file the green card application after the EB-2 NIW has already been sent in or approved. What you cannot do is file a green card application on its own. You can read more about the nuances of filing timelines here.
Who qualifies for the EB-2 NIW criteria?
There are two parts to qualifying for the EB-2 NIW:
Advanced Degree or Exceptional Ability:
You can qualify for this part of the EB-2 NIW if you fall into one of the following categories:
- You have a U.S. Master’s degree
- You have the foreign equivalent of a U.S. Master’s degree.
- You have a U.S. Bachelor's degree, AND five years of progressive work experience after graduation
- You have the foreign equivalent of a U.S. Bachelor’s degree, AND five years of progressive work experience after graduation
- You meet at least three of the following “exceptional ability” criteria:
- You have a degree, diploma, certificate or similar award related to your area of expertise from a university or college
- You have at least 10 years of full-time experience in your field or occupation, and can get letters from current and former employers or other evidence to prove it
- You have a license to practice your profession or certification for your profession or occupation
- You have received a high salary or other types of remuneration, such as equity that was paid out
- You have membership in a professional association(s)
- You have received recognition for your achievements in your field by peers, government entities, and professional or business organizations. This could include venture capital funding, government grants, press about you, awards, and the list goes on.
- You have other comparable evidence that demonstrates your exceptional ability. We can get creative here. Maybe there are patents in your name? Maybe you have spoken at numerous conferences or judged events in your field? We can talk through options for your particular situation.
Once you have met this part of the EB-2 NIW criteria through your Advanced Degree or Exceptional Ability, you will need to also meet the National Interest Waiver criteria.
National Interest Waiver:
You must meet all three of the following criteria to qualify for the EB-2 NIW:
- Your proposed work in the U.S. has Substantial Merit and National Importance
This criteria is forward-looking and considers the future impact of your work if your green card is granted and you are able to continue working in the U.S. You’ll want to pitch to USCIS in a similar way that you pitch to investors. Think about how the U.S. will benefit from your startup if USCIS allows you to become a permanent resident and continue to scale your startup in the years to come.
2. You are well-positioned to advance—or succeed with—your future plans
This criterion takes into consideration any factors that might indicate your future success, such as your past achievements, as well as your funding, advisors, current customers, prospective customers, and partners. It can also be helpful to show that you have a business plan (even a short and simple one).
- It is beneficial for the U.S. to waive the PERM labor certification process
One benefit of the EB-2 NIW is that no PERM labor certification is required. The PERM process is lengthy and requires you to prove that you are the person best qualified for the role by posting jobs and gathering job applicants.
This criterion asks you to prove why it would be worth it for the U.S. to waive the PERM process. Here we will touch on the importance of your work again, as well as the fact that you are the founder of your company.
The NIW criteria are of course subjective, but we can help you figure out the best way to position your background and the startup you’re building to meet these requirements.
I’m a startup founder on the O-1 visa. Why should I file the EB-2 NIW as opposed to the EB-1?
Since the O-1A and EB-1A criteria are almost identical, founders with approved O-1A visas often assume that they will also easily get the EB-1A approved. Unfortunately, the EB-1A is much more difficult to get approved than the O-1A, even though they seem very similar. For the O-1A, USCIS is looking for individuals at the top 10% of their field, whereas with the EB-1A, they are looking for the top 1%.
The EB-2 NIW is often the best choice for startup founders, except for highly accomplished founders and for those born in India or China. Getting a green card through the EB-2 NIW can take a long time if you were born in India or China, so it's sometimes worth it to try for the EB-1 instead.
Either way, we want to make sure you understand your options and can confidently make a decision. When you work with Legalpad, you’ll be working with a highly qualified team of immigration experts dedicated to achieving your desired results.
Does the EB-2 NIW give me work authorization?
The EB-2 NIW does not give you any sort of work authorization. If you are in the U.S. when you file your EB-2 NIW, you will need to make sure that you have valid work authorization while your petition is processing. There are a lot of great startup founder visa options available, such as the O-1, L-1. H1-B, and E-2. Chat with our team if you would like to discuss what options would work best for you.
How long does it take to get an EB-2 NIW approved?
On May 24, 2022, USCIS announced that premium processing will be made available for EB-2 NIW petitions! Premium processing is a service offered by USCIS that expedites the processing of visa applications for a fee (typically $2500 USD). Premium processing for EB-2 NIWs will be rolled out in phases over the course of 2022, beginning in July with certain EB-2 NIW petitions that were previously filed. With premium processing, EB-2 NIW petitions will be adjudicated in 45 calendar days.
Without premium processing, EB-2 NIW processing times vary greatly. You can check the most recent processing times on USCIS’s website. You will need to know the USCIS service center where your EB-2 NIW is processing, which can be found on your receipt notice after you have filed your EB-2 NIW.
As premium processing is rolled out for EB-2 NIWs over the course of 2022, we will continue to update our newsletter subscribers. Even if you file your EB-2 NIW now, you will have the option to upgrade your petition with premium processing when it becomes available for you.
How can Legalpad help?
We know that immigration is confusing and stressful enough on its own. When you add growing a startup, it’s a lot to handle on your own. That is why we’re on your team and eager to help you get your green card as quickly and easily as possible! Our team of immigration attorneys and specialists have expertise in NIW cases and other visas for startup founders. Reach out to chat about your unique situation and we’ll figure out what work visas and green cards can help you on your journey towards permanent residence!