The EB Work Visas and the NIW
There are two types of EB work visas: EB-1 and EB-2. The EB-1 is only for executives, managers, and those individuals with extraordinary achievements. The EB-2 is for anyone who is an advanced degree holder or who may have exceptional ability in their field.
The EB-2 is a popular visa path, but those who take it must wait for a job offer from a qualified sponsor and follow the strict regulations of the PERM Labor Certification process. This can take months before the Department of Labor approves the employer and the job offer. In some situations, employers and potential employees wait a year or longer.
If you qualify for an EB-2, you can choose to take the alternate path to the US via a National Interest Waiver petition. This route lets you skip the job offer requirement, which also voids the need for a PERM certification. Instead, you can self-petition, filing an I-140 on your own behalf without requiring an employer or labor certification.
Requirements for the NIW
Recent legislation clearly walks potential NIW petitioners through the process. If you meet these requirements, you may qualify for the waiver. However, the onus is on the US government to decide on a case-by-case basis whether your waiver is approved or not.
First, you must show that your proposed endeavor is of national importance and has substantial merit. The field isn’t wholly important, but the top approvals are often in STEM fields, business, health, education, or culture. You don’t have to show that your endeavor will have economic impacts, but that’s helpful.
Next, you must demonstrate that you are in a solid position to advance your proposed endeavor. It’s one thing to have an idea, but another entirely to be able to make it happen. Evidence of this requirement is shown via your educational background, job experience, skills, previous successes, current job and progress, and well-drawn-out plan.
Finally, you must thoroughly show that the US will benefit equally or more by granting you the waiver rather than requiring a job offer and PERM certification. This part can be tricky, and working with an experienced National Interest Waiver attorney, like those of us at Visa2US, gives you your best chance of demonstrating this requirement.
Pros and Cons of EB-2 Versus NIW
If you think you qualify for the EB-2 and the NIW, the next question is which one is best for your unique situation. Evaluating the pros and cons can help you determine this answer. Let’s look at the different factors involved in each of these popular categories.
● Processing time: NIW processing time ranges from 3-9 months, although you may pay for premium processing to expedite the adjudication. EB-2 visas have a similar processing time.
● Documentation: Forms for an EB-2 are completed and paid for by the job sponsor. This includes any attorney’s fees. NIW forms and all filing and attorney fees are covered by the petitioner.
● Priority dates: Once a waiver or visa is successfully approved, the beneficiary does not receive the document until their priority date is current. This is different for each category and country. Your attorney can help you determine whether the priority date for an EB-2 or NIW in your country is faster.
● Letters of Recommendation: Both the EB-2 and NIW will require Letters of Recommendation before approval is granted. However, an NIW’s letters will have more impact on whether the waiver is allowed or denied.
● Exceptional ability: An EB-2 visa can be obtained using skill and education only. An NIW’s approval is often contingent on the petitioner demonstrating their exceptional ability in the field.
● PERM Certification: The PERM Labor Certification is designed to protect the American economy and workforce. The goal is to prevent employers from hiring foreign workers in place of US nationals and paying them less. PERM certifications are difficult to obtain, with many steps in place that the employer must meet within strict timeframes. If no qualified candidate is available after those steps are met, the employer can extend a job offer to a foreign worker and petition for a visa. The National Interest Waiver skips this requirement.
What’s Next?
Ultimately, the advantages and disadvantages balance each other out, and the only person who can decide which one is best for you is you. You can obtain an EB-2 with less of a financial investment and fewer qualifications, but an NIW gives you more control over your employment and future.
Still on the fence about which work path is best for you? Contact our skilled legal experts at Visa2US and talk to us about your experience and your goals. We’ll help you understand the pros and cons of the choices available to you and walk you through the process as you move your career forward.
