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What Is an EB2 Green Card?

What is the EB2 Green Card National Interest Waiver?

The EB-2 National Interest Waiver (NIW) category is a sub-set of the general Employment-Based 2nd preference (EB-2) immigrant visa category.

The general EB-2 category requires an employer sponsor and that employer sponsor must undergo the labor certification process, which is meant to ensure that no U.S. workers are available and willing to fill the position.

Under the EB-2 NIW category, however, the foreign national requests a waiver of the employer sponsor and labor certification requirements by establishing that it is in the “national interest” to grant him or her a green card. So, for an EB-2 NIW application, neither an employer sponsor nor a labor certification is required. This is the primary benefit of applying under the EB-2 NIW category.

The EB-2 NIW category does not waive the basic entry requirements of the general EB-2 visa category, which is that the foreign national must have an advanced degree or its equivalent in a professional field or exceptional ability in the sciences, arts, or business. If the foreign national meets these entry requirements, then he or she must then prove that his or her work is in the “national interest.”

The courts have set forth the following three-prong test to determine what applications would qualify as serving the national interest:

  1. The foreign national must be seeking work in an area of substantial intrinsic merit;
  2. The foreign national’s work must have a benefit which will be national in scope; and
  3. The foreign national must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

With regard to the last prong, which is the most difficult to meet, the foreign national must provide evidence establishing that he or she has a past record of achievement in the field, the ability to serve the national interest to a substantially greater extent than the majority of his or her professional peers, and that the foreign national has influence on his or her field of employment as a whole.

Finally, it is important to note that the priority dates of the general EB-2 visa category apply also to the EB-2 NIW category.

Can I move an EB3 category case to the EB2 visa category?

This question is a common one, especially since the EB-3 visa category is severely retrogressed for all foreign nationals and has been for some time. Unfortunately, it is not possible to simply “upgrade” a current EB-3 permanent residency (“green card”) case to an EB-2 permanent residency case. The visa categories are set during the labor certification process and cannot be changed.

However, it is possible to file a new permanent residency case under the EB-2 category with a new employer (or, in some instances, with the same employer). The job description and the foreign national’s background must still meet the requirements of the EB-2 visa category. If a new EB-2 case is filed, the foreign national would be able to retain the priority date from the EB-3 case if the Form I-140 from that case was approved.

If you have any further questions about the eb2 green card category or other immigration questions, please feel free to contact us and we can help you out.