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EB2 NIW Green Card
Advanced Degree / Exceptional Ability
2023 Legal Updates

EB2 NIW Green Card
Advanced Degree / Exceptional Ability

EB2 NIW Green Card for persons holding an advanced degree or having exceptional abilities. Preference to individuals in the field of sciences, technology, engineering, and mathematics (STEM) to secure a National Interest Waiver (NIW) and qualify for a Green Card without a job offer.

Number of visas issued in 2021: 19,779

Normal Processing Time: 6-9 months Government Fees $700 + $85

Expedited Processing Time: 45 days Government Fee $2,805

Attorney’s Fee: $6,200 (paid in 2 installments $3,600, $2,600)

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12 Things You Need to Know About the EB2 NIW
- Table of Contents -

1. EB2 NIW Green Card - Advanced Degree / Exceptional Ability - Visa Overview

The EB-2 Category confers Permanent Residence in the United States to the principal applicant, their spouse, and minor children under 21.

The EB-2 classification is divided into two sub-categories or Pathways:

1. Professionals with Advanced Degrees or

2. Individuals with Exceptional Ability/ies in the sciences, arts, or business.

You can receive permanent residence in either of the 2 pathways, and you do not need to cumulate the elements.

Although a job offer from an employer and a labor certification from the Department of Labor are generally required for the EB-2 classification, you may be eligible for self-petition if you ask for a waiver of the labor certification requirement based on the national interest.

This self-petition, which does not require a sponsoring employer and skips the labor certification process, is known as a National Interest Waiver and can be applied to either pathway.

The United States Citizenship and Immigration Service is the institution responsible for approving this type of petition. *

2. EB2 NIW Green Card - Advanced Degree Requirements

To qualify for classification as an advanced degree professional, you must be a member of the professions holding an advanced degree or foreign equivalent degree, and the position certified in the underlying labor certification must require, at a minimum, a professional holding such a degree (a bachelor’s followed by at least 5 years of progressively responsible experience is considered the equivalent of an advanced degree).

You will need to provide documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. bachelor’s degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-bachelor’s work experience in the specialty.

If a doctoral degree is customarily required by the specialty, you must have a U.S. doctorate or foreign equivalent degree.

3. EB2 NIW Green Card - Exceptional Abilities Requirements

To qualify for the EB2 exceptional ability classification, you must show that you have exceptional ability in the sciences, arts, or business. Your initial evidence must include evidence that affirmatively answers at least 3 of the 6 questions below:

Have you received a degree, diploma, certificate, or similar award from a college, university, school, or other institution, relating to the field of exceptional ability?
Do you have at least 10 years of full-time experience in your field, as demonstrated by letters from current or former employers?
Do you have a license or certification to practice in your profession or occupation?
Have you commanded a high salary or other service remuneration, demonstrating your exceptional ability?
Are you a member of any professional associations?
Have you been recognized for any achievements and significant contributions to the industry by peers, governmental entities, or professional or business organizations?

Note: If any of the criteria discussed in this section do not readily apply to your occupation, you may submit comparable evidence to establish your eligibility.

If you meet these minimum threshold requirements, USCIS will then evaluate all the evidence you submitted in its totality to determine whether you have a degree of expertise significantly above that commonly encountered in the sciences, arts, or business.

4. EB2 NIW Green Card - Do I Need a Job Offer?

The EB2 classification typically requires a job offer from a U.S. employer. In general, the U.S. employer first obtains a labor certification approval from the Department of Labor and then files a petition on your behalf with USCIS.

For nurses who may qualify under EB-2 and physical therapists, a labor certification from the Department of Labor is not required. Instead, the petition is submitted with an uncertified application.

You may seek a waiver of the job offer (and thus the labor certification requirement) and petition for yourself with no U.S. employer if you can establish that it is in the national interest to waive the job offer requirement.

5. EB2 NIW Green Card - National Interest Waiver (NIW) General Requirements

USCIS may, as a matter of discretion, grant your request for a national interest waiver where the below requirements are met:

Your proposed endeavor has both substantial merit and national importance.
You are well positioned to advance the proposed endeavor.
On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

Thousands National Interest Waiver petitions are being submitted and approved each year and our firm focuses on guiding you through the process by connecting your qualifications with the elements required by the United States Citizenship and Immigration Service (USCIS).

6. EB2 NIW Green Card - National Interest Waiver (NIW) and STEM

The USCIS Policy Manual explains how an advanced degree in a STEM (Science, Technology, Engineering, Math) field tied to a proposed endeavor in a critical and emerging technology or supports U.S. national security or economic competitiveness is a strong positive factor, as are letters from interested government agencies.

Critical and emerging technologies are those that are critical to U.S. national security, including military defense and the economy. To identify a critical and emerging technology field, USCIS considers governmental, academic, and other authoritative and instructive sources, and all other evidence submitted by the petitioner. The lists of critical and emerging technology subfields published by the Executive Office of the President, by either the National Science and Technology Council or the National Security Council, are examples of authoritative lists.

7. EB2 NIW Green Card - STEM Critical and Emergency Technology List Update

CRITICAL AND EMERGING TECHNOLOGIES LIST UPDATE*

This list informs future efforts to prioritize across CETs and their component subfields; however, this list should not be interpreted as a priority list for either policy development or funding. Instead, this list should be used as a resource to inform future efforts that promote U.S. technological leadership.

The list is advisory as there are many areas or fields where the United States is interested in attracting individuals with Advanced Degrees or Exceptional Abilities.

Advanced Computing

Supercomputing
Edge computing
Cloud computing
Data storage
Computing architectures
Data processing and analysis techniques

Advanced Engineering Materials

Materials by design and material genomics
Materials with new properties
Materials with substantial improvements to existing properties
Material property characterization and lifecycle assessment

Advanced Gas Turbine Engine Technologies

Aerospace, maritime, and industrial development and production technologies
Full-authority digital engine control, hot-section manufacturing, and associated technologies

Advanced Manufacturing

Additive manufacturing
Clean, sustainable manufacturing
Smart manufacturing
Nanomanufacturing

Advanced and Networked Sensing and Signature Management

Payloads, sensors, and instruments
Sensor processing and data fusion
Adaptive optics
Remote sensing of the Earth
Signature management
Nuclear materials detection and characterization
Chemical weapons detection and characterization
Biological weapons detection and characterization
Emerging pathogens detection and characterization
Transportation-sector sensing
Security-sector sensing
Health-sector sensing
Energy-sector sensing
Building-sector sensing
Environmental-sector sensing

Advanced Nuclear Energy Technologies

Nuclear energy systems
Fusion energy
Space nuclear power and propulsion systems

Artificial Intelligence (AI)

Machine learning
Deep learning
Reinforcement learning
Sensory perception and recognition
Next-generation AI
Planning, reasoning, and decision making
Safe and/or secure AI

Autonomous Systems and Robotics

Surfaces
Air
Maritime
Space

Biotechnologies

Nucleic acid and protein synthesis
Genome and protein engineering including design tools
Multi-omics and other biometrology, bioinformatics, predictive modeling, and analytical tools for functional phenotypes
Engineering of multicellular systems
Engineering of viral and viral delivery systems
Biomanufacturing and bioprocessing technologies

Communication and Networking Technologies

Radio-frequency (RF) and mixed-signal circuits, antennas, filters, and components
Spectrum management technologies
Next-generation wireless networks, including 5G and 6G
Optical links and fiber technologies
Terrestrial/undersea cables
Satellite-based communications
Hardware, firmware, and software
Communications and network security
Mesh networks/infrastructure independent communication technologies

Directed Energy

Lasers
High-power microwaves
Particle beams

Financial Technologies

Distributed ledger technologies
Digital assets
Digital payment technologies
Digital identity infrastructure

Human-Machine Interfaces

Augmented reality
Virtual reality
Brain-computer interfaces
Human-machine teaming

Hypersonics

Propulsion
Aerodynamics and control
Materials
Detection, tracking, and characterization
Defense

Quantum Information Technologies

Quantum computing
Materials, isotopes, and fabrication techniques for quantum devices
Post-quantum cryptography
Quantum sensing
Quantum networking

Renewable Energy Generation and Storage

Renewable generation
Renewable and sustainable fuels
Energy storage
Electric and hybrid engines
Batteries
Grid integration technologies
Energy-efficiency technologies

Semiconductors and Microelectronics

Design and electronic design automation tools
Manufacturing process technologies and manufacturing equipment
Beyond complementary metal-oxide-semiconductor (CMOS) technology
Heterogeneous integration and advanced packaging
Specialized/tailored hardware components for artificial intelligence, natural and hostile radiation environments, RF and optical components, high-power devices, and other critical applications
Novel materials for advanced microelectronics
Wide-bandgap and ultra-wide-bandgap technologies for power management, distribution, and transmission

Space Technologies and Systems

On-orbit servicing, assembly, and manufacturing
Commoditized satellite buses
Low-cost launch vehicles
Sensors for local and wide-field imaging
Space propulsion
Resilient positioning, navigation, and timing (PNT)
Cryogenic fluid management
Entry, descent, and landing

8. EB2 NIW Green Card - Advance Degree, STEM, and National Interest Waiver

Many proposed endeavors that aim to advance STEM technologies and research, whether in academic or industry settings, not only have substantial merit in relation to U.S. science and technology interests but also have sufficiently broad potential implications to demonstrate national importance. On the other hand, while proposed classroom teaching activities in STEM, for example, may have substantial merit in relation to U.S. educational interests, such activities, by themselves, generally are not indicative of an impact in the field of STEM education more broadly, and therefore generally would not establish their national importance.

USCIS considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM areas important to U.S. competitiveness or national security, an especially positive factor to be considered along with other evidence for purposes of the assessment under the second prong.

When evaluating the third prong and whether the United States may benefit from the person’s entry, regardless of whether other U.S. workers are available (as well as other factors relating to prong three discussed above, such as urgency), USCIS considers the following combination of facts contained in the record to be a strong positive factor:

The person possesses an advanced STEM degree, particularly a Ph.D.;
The applicant will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and
The person is well positioned to advance the proposed STEM endeavor of national importance.

The benefit is given particular weight where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness, or when the petition is supported by letters from interested U.S. government agencies.

Nevertheless, in several cases, a combination of a bachelor’s degree along with 5 years of requisite experience within a specific industry may qualify for a petition for National Interest Waiver to be granted as long as the National Interest Waiver (NIW) factors are met.

National Interest Waiver Factors are:

Your proposed endeavor has both substantial merit and national importance.
You are well positioned to advance the proposed endeavor.
On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.a

9. EB2 NIW Green Card - Client Application Timeline

Every client’s file and situation are different, but in general terms, the following is a timeline of our office processing your case.

Initial Client Consultation
Strategy Session
Office issues checklists
Complete the Client Intake Questionnaire
Client Completes Draft Forms
Client Uploads Documents on Portal
Review Supporting Documents (Credentials, Resumes, References, Articles, Pay, Research, Acclaim)
Client submits Career Overview
Prepare together supporting Memorandum
Finalize Final Draft
Final Joint Review
Upload/Submit to USCIS

The crucial phase in the client’s representation is securing the required documents (Credentials, Resumes, References, Articles, Pay history, Research, Acclaim, and drafting the proposed endeavor of substantial merit and national importance) and ensuring they all comply with the USCIS standards.

The most crucial element, especially if the client will take advantage of the National Interest Waiver, is the case memorandum which will summarize the applicant’s qualifications, connect to the USCIS requirements, and indicate how the applicant’s proposed endeavor has substantial merit and national importance.

Based on your documentation, we request that you prepare a career presentation and overview, which would be the basis for our office to prepare your case memorandum.

Our office will review and prepare the memorandum and finalize your application within 2-3 weeks from receiving all documents.

10. EB2 NIW Green Card - USCIS Application Processing Times and Fees

The United States Citizenship and Immigration Service (USCIS) charges the following governmental fees, subject to changes.*

Standard Processing Fee

USCIS Standard Application Fee: $700.00

The standard processing time corresponding to the standard fee for an EB2 Advanced Degree / Exceptional Ability Petition is, on average, 6-9 months.

Premium Processing Fee

USCIS Premium Processing Application Fee: $2805.00 (in addition to the standard fee of $700)

There is the possibility for your case to be processed faster if you pay a premium governmental processing fee of $2805 directly to the United States Citizenship and Immigration Service, which will guarantee the processing of your application in only 45 days or sooner (time updated on February 26, 2024).

11. EB2 NIW Green Card - Attorney's Processing Times and Fees

Our office charges $6,200.00, payable in two installments ($3,600 at inception and $2,600 at submission), to prepare the EB-2 petition; this includes the consultations, review, document preparation, memorandum, and file submission to USCIS (a complete file submission).

Our fees are, in general, non-refundable. Still, in cases of EB-2, we usually offer a money-back guarantee after receiving all client documentation that confirms our requirements and checklists so that clients can rest assured of our services.

In general, it will take us about 1-3 weeks to organize every aspect of your file, review your documents, and write the case memorandum.

From our experience clients typically will dedicate a significant amount of time to securing all the requisite documents which generally takes anywhere from 1-3 months. At all times we communicate with our clients and we offer an online portal where we strive to review documents as they are being uploaded by the clients so that we can spot any elements subject to change.

Our portal is available 24/7/365 and we encourage clients to upload, message, and schedule any case conferences through the portal which consolidates all information in one place.

After the petition is received by USCIS there can be 2 decisions – Approval or Request for Additional Information (RFI). RFI requests are typical in these cases and are sent on average in about 20-30% of the cases. An RFI can request a more elaborate answer to a question formulated by USCIS for example on experience or proposed endeavor.

We will work with our clients in clearing the first round of RFI free of charge. For any additional rounds of RFI, very uncommon, we will customarily charge based on the complexity and the time needed usually $1,000.

13. EB2 NIW Green Card - Registering the Permanent Residence

Once your EB-2 petition is approved, you and your dependents (your spouse and children under 21 will have to apply further to register your permanent residence in the United States.

The permanent residence application is mainly an elaborated background check performed by the United States and your country authorities to establish that you meet the conditions for admissibility and that you are not subject to a bar to admission.

Inadmissibility conditions could be illegal activities, which may take the form of an unlawful stay in the U.S., to more severe conditions, such as terrorism, human trafficking, money laundering, prostitution, etc.

The Permanent residence application is a complex application requiring information about yourself, including past employment, residences, family background, and membership in various organizations.

There have been instances where applicants were convicted of petty crimes, and we have been asked about admissibility despite conviction. In general, the conviction of a crime is not an automatic disqualifier. Still, there are certain limits concerning the crimes and the sentence applied. We usually address these topics in our strategy consultation before applying for the EB2 Advanced Degree / Exceptional Ability visa.

The general rule is that an applicant should not be convicted of any crime where the law provides for a sentence longer than 1 year imprisonment, and the sentence applied should not be longer than 6 months. There is, however, a list of crimes involving moral turpitude (fraud, drugs, prostitution, etc.) where if sentenced even to probation, could disqualify an applicant.

All applicants and dependents will require an immigration medical report, which can be performed in the U.S. or abroad at several approved clinics in each consular service area.

The Application to Register Permanent Residence is filed either in the U.S. if you are already present in the U.S. or at the U.S. Consulate abroad and is subject to another governmental fee and attorney’s fee.

We strongly advise you to retain our firm to prepare your Permanent Residence Application.

In the Permanent Residence Application, you will also petition for your spouse and minor children under 21, who will also receive permanent resident status along with you. A spouse and their children could be included in the permanent residence application even if the marriage was entered after the EB2 Advance Degree / Exceptional Ability petition was approved, extending dependent status accordingly.

The Permanent Residence governmental fees are as follows:

USCIS Processing (in the U.S.):

$1,140.00 for the principal applicant
$1,140 for the main applicant’s spouse, filing at the same time as the applicant
$750 per minor filing at the same time with the principal applicant
$85 for each applicant aged 14-78 (principal, spouse, child)

Consular Processing*:

$325.00 for the principal applicant
$325 for each dependent (spouse/child)

Permanent Residence Attorney’s Fees:

$2,600.00 for the principal applicant (USCIS processing in the U.S.)
$1,250.00 for the main applicant (Consular Processing outside of the U.S.)
$800.00 for each dependent (spouse/child) (USCIS processing in the U.S.)
$530.00 for each dependent (spouse/child) (Consular Processing outside of the U.S.)

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EB2 NIW Green CardAdvanced Degree / Exceptional Ability2023 Legal Updates