The United States offers numerous pathways to permanent residency, including the National Interest Waiver (NIW) and Employment-Based Second Preference (EB-2) visa categories. Both are designed to attract talented individuals, but they have different requirements and procedures.
The EB-2 visa is intended for those with advanced degrees or exceptional abilities. To qualify, applicants generally need one of the following:
- An advanced degree: This typically refers to a master’s degree or higher, or a bachelor’s degree with five years of progressive work experience.
- Exceptional ability: For individuals in the sciences, arts, or business, this requires demonstrating skills that are significantly above average.
Applicants usually need a job offer in the United States, as well as Labor Certification (PERM), which confirms that hiring them would not negatively impact U.S. workers. However, under the NIW subcategory of EB-2, certain individuals can bypass the Labor Certification requirement if their work has a substantial positive impact on the United States and if it is in the “national interest” to hire them. To qualify for the NIW, applicants must demonstrate:
- Exceptional merit: The work is highly significant.
- National importance: The work has an impact on the U.S. beyond the immediate job environment.
- Benefit to the U.S.: It is in the country’s best interest to waive the Labor Certification.
The NIW application process requires candidates to provide evidence of their achievements, such as publications, honors, and reference letters, to substantiate claims of notable accomplishments. If approved, the NIW eliminates the need for Labor Certification and allows for self-petitioning, meaning applicants do not need employer sponsorship.
There are two main steps involved in the EB-2 NIW green card application process:
- The I-140 petition, a crucial document that certifies an applicant’s qualifications and the national interest their work serves, must be filed first. The U.S. government offers two processing options for this petition: premium and regular. Premium processing reduces the review period to 45 days, while standard processing may take up to a year.
- After the I-140 petition is approved, the I-485 petition, also known as the immigrant visa petition, must be filed. This step is critical as it moves the applicant from petition approval to actual green card status. The processing time for this step typically matches the standard I-140 processing time, averaging one year.
However, in 2023, a significant hurdle has emerged: backlogs for priority dates. These backlogs represent a queue of applicants waiting to apply for an immigrant visa, or I-485. Due to these delays, even after their I-140 petition has been approved, applicants may still have to wait for years, depending on the priority dates related to their nationality, before they can proceed with their application. For example, the Green Card Priority Date for an Indian national dates back to July 2012, which implies a waiting period of 12 years. Therefore, depending on nationality, priority dates are set, and even after receiving I-140 approval, an individual may have to wait years before they can apply for the I-485 for Green Card status. Immigration Insights provided by Heta Thakar, Legal Administrative Manager , Wwics Canada Inc