Imagine developing a solution that could improve lives across the United States. It might be new medical technology, an innovative method for producing clean energy, or a process that makes a vital resource safer and more accessible. Experts in your field recognize its potential, and organizations are interested in helping you scale it or bring it to market. You see an opportunity to expand your work in the United States, but there is one obstacle. You do not have a job offer from an American employer.
The National Interest Waiver, known as NIW, may offer a path forward. This option allows certain foreign nationals to apply for permanent residence, often called a green card, without a job offer or the labor certification process. Labor certification, officially called the Program Electronic Review Management or PERM, is normally required for many employment-based green cards. It is conducted by the U.S. Department of Labor to confirm that no qualified U.S. workers are available for the position being offered.
In an NIW case, the U.S. government can waive this requirement if you can show that your work has substantial merit and national importance, that you are well positioned to advance it, and that granting you permanent residence benefits the United States. The NIW is part of the second employment-based immigrant visa preference category, known as EB-2.
To qualify for EB-2, United States Citizenship and Immigration Services (USCIS) requires that you have either an advanced degree or exceptional ability. An advanced degree means a U.S. master’s degree or higher, or the foreign equivalent. A U.S. bachelor’s degree plus at least five years of progressive work experience in the specialty related to the position may also meet this requirement. Exceptional ability means a level of expertise in the sciences, arts, or business that is significantly above the ordinary. This can be shown through documented achievements, professional licenses, memberships in professional associations, or recognition for your work.
The NIW provides several advantages. You can file Form I-140, Immigrant Petition for Alien Worker, on your own without employer sponsorship. You can avoid the lengthy PERM process. Because NIW is a self-petition, you are not tied to a specific employer. After you become a lawful permanent resident, you may work for any U.S. employer or be self-employed. Approval can lead directly to lawful permanent resident status. If you are already in the United States and a visa number is available in the EB-2 category according to the Department of State’s Visa Bulletin, you may file Form I-140 and Form I-485, Application to Register Permanent Residence or Adjust Status, at the same time.
For professionals whose work addresses important national needs in fields such as science, healthcare, engineering, education, or business, the NIW can remove key barriers and provide a direct route to living and working permanently in the United States.
Eligibility Requirements
Before applying for the NIW, you must first qualify under the EB-2 employment-based immigrant visa category. USCIS outlines two main qualification paths: advanced degree or exceptional ability. Only after meeting one of these can you move on to the additional NIW criteria.
EB-2 Qualification Paths
Advanced Degree
You meet this requirement if you hold a U.S. master’s degree or higher, or the foreign equivalent. A U.S. bachelor’s degree plus at least five years of progressive, post-baccalaureate work experience in the specialty related to the position may also qualify. Progressive experience means your responsibilities and expertise grew over time, with each role building upon the previous one in terms of responsibility and complexity.
Following the January 2025 USCIS policy update, this experience must be directly related both to your degree specialty and to the proposed endeavor in your NIW petition. Experience in unrelated fields may not qualify, even if it is progressive.
Example: An applicant earns a bachelor’s degree in environmental engineering and spends five years designing increasingly complex water treatment systems for municipal facilities. Their role evolves from junior engineer to project lead overseeing multi-million-dollar installations. This progression, combined with the degree, meets the EB-2 advanced degree requirement.
Exceptional Ability
If you do not have an advanced degree, you may qualify by demonstrating exceptional ability in the sciences, arts, or business. USCIS defines this as expertise significantly above that ordinarily encountered in the field. To show exceptional ability, you must provide at least three types of evidence from USCIS’s list of six approved categories.
As clarified in the January 2025 USCIS update, your exceptional ability must be directly related to your proposed endeavor in the NIW petition. For example, exceptional ability in computer science would not qualify for an NIW if the proposed endeavor is in an unrelated area, even if all six criteria are met.
Example: A software developer without a master’s degree has over ten years of experience in cybersecurity, holds multiple industry certifications, is a member of recognized professional organizations, and has received national awards for developing security protocols adopted by large corporations. These achievements meet the EB-2 exceptional ability standard when the proposed endeavor is in the field of cybersecurity.
NIW Additional Criteria
Once EB-2 eligibility is established, NIW applicants must satisfy three additional requirements based on the 2016 precedent decision Matter of Dhanasar, which replaced the previous Matter of New York State Department of Transportation standard.
1. Substantial Merit and National Importance
Your proposed work must have measurable value and significance. Merit can exist in business, science, technology, healthcare, education, or culture. National importance means the work could reasonably be expected to serve the national interest, not necessarily that it must be implemented nationwide.
Example: A public health specialist proposes a vaccination outreach program that could be implemented in multiple states to reduce preventable disease rates. While the pilot program is local, the model addresses a national health concern and could serve the broader national interest.
2. Well Positioned to Advance the Proposed Work
You must demonstrate the ability to carry out your plan. This can include education, past achievements, relevant partnerships, or access to necessary facilities and resources.
Example: An agricultural scientist develops a drought-resistant crop variety. They have prior publications in respected journals, have conducted successful field trials, and have letters from U.S. agricultural agencies expressing interest in collaborating. These factors show they are well positioned to advance the work.
3. Balancing Test
USCIS must find that waiving the job offer and labor certification is beneficial overall. The benefits of your work must outweigh the advantages of requiring the standard labor market process.
Example: A renewable energy entrepreneur’s technology could accelerate clean power adoption and support national energy goals. Requiring them to first secure a specific job offer would delay deployment of the technology, making the waiver more advantageous.
Understanding the Two Levels of Review
USCIS conducts a two-step evaluation process. Applicants sometimes assume meeting the NIW criteria alone is enough. In reality, USCIS first confirms EB-2 eligibility, then applies the NIW test. If you fail to meet the EB-2 threshold, the NIW request will not be considered, regardless of the merit of your work.
Following the January 2025 USCIS policy update, officers now place greater emphasis on this two-step evaluation. They may deny petitions based solely on failure to meet EB-2 requirements without evaluating the NIW criteria. For advanced degree petitioners, progressive experience must relate both to the degree field and the proposed endeavor. For exceptional ability petitioners, the exceptional ability must be in the same field as the proposed endeavor.
Required Documents & Evidence
To succeed in an NIW petition, you must submit evidence that clearly supports both your EB-2 eligibility and each element of the NIW criteria. All petitions are filed using Form I-140, Immigrant Petition for Alien Worker, and USCIS reviews the entire package based on the documentation you provide. For an NIW filing, include a completed Form ETA-9089, Appendix A, and a signed Form ETA-9089, Final Determination with your Form I-140.
This section outlines the types of evidence recognized by USCIS. You are not required to submit every item listed, but your evidence must, when considered as a whole, meet the eligibility standards.
Evidence for EB-2 Advanced Degree
If applying under the advanced degree category, you must include:
- A copy of your U.S. master’s degree or higher (or the foreign equivalent).
- If using a foreign degree, include an official academic evaluation confirming equivalency to a U.S. degree.
- If using a bachelor’s degree plus five years of progressive experience, submit:
- A copy of your bachelor’s degree.
- Letters from current and former employers verifying full-time, post-baccalaureate work experience.
- Each letter should describe the job title, duties, dates of employment, and whether the responsibilities progressed over time.
USCIS interprets ‘progressive experience’ as work in which duties and responsibilities increase in complexity over time. Following the January 2025 USCIS update, this experience must be directly related to both your degree field and your proposed endeavor for the NIW.
Evidence for EB-2 Exceptional Ability
If applying under the exceptional ability category, you must provide evidence for at least three of the six regulatory criteria listed in 8 CFR § 204.5(k)(3)(ii):
- Official academic record showing a degree, diploma, certificate, or similar award from a college, university, or other institution of learning relating to your area of expertise.
- Letters from current or former employers documenting at least ten years of full-time experience in the occupation.
- License or certification to practice the profession or occupation.
- Evidence of salary or other remuneration demonstrating exceptional ability relative to others in the field.
- Membership in professional associations.
- Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional/business organizations.
Comparable Evidence: If these categories do not apply to your occupation, USCIS may accept alternate documentation. The January 2025 USCIS policy update clarified that for NIW purposes, the area of exceptional ability must be directly related to your proposed endeavor.
Evidence for NIW Criteria (Matter of Dhanasar)
Once EB-2 eligibility is established, you must present evidence for each of the three NIW-specific criteria.
A. Substantial Merit and National Importance
USCIS looks for work that provides measurable benefit and addresses issues of national interest, including (but not limited to) healthcare, economic development, science, education, cybersecurity, energy, public safety, or infrastructure.
Possible evidence includes:
- Academic or industry publications demonstrating the impact of your work.
- Media reports or citations showing the significance of your research or projects.
- Letters from U.S. government agencies, universities, or organizations confirming national interest in your work.
- Reports showing that your work addresses a documented national challenge or policy priority.
- Grants, funding, or contracts from U.S. institutions related to your project.
- Evidence that your work influences public policy, industry standards, or economic development beyond a local level.
Your work does not need to be national in geographic scope, but it must relate to a field or challenge of national significance.
B. Well Positioned to Advance the Proposed Endeavor
USCIS evaluates your track record, qualifications, and ability to continue the proposed work.
Possible evidence includes:
- A detailed personal statement or business plan explaining your proposed endeavor.
- Curriculum vitae (CV) or résumé documenting relevant experience.
- Proof of past accomplishments in the field (e.g., research results, patents, commercial success).
- Letters from experts or collaborators confirming your qualifications and the viability of the work.
- Contracts, project plans, or letters of institutional support showing ongoing or future engagement.
- Evidence of access to resources such as facilities, funding, staff, or partnerships.
C. On Balance, Beneficial to the United States
USCIS must determine that waiving the job offer and labor certification provides greater benefit to the U.S. than requiring them.
Possible evidence includes:
- Explanation of why labor certification is impractical for your work (e.g., entrepreneurial roles, self-directed research).
- Documentation showing that delays from seeking a job offer would harm your ability to contribute.
- Evidence that your work addresses urgent national priorities or fills unmet needs.
- Letters from stakeholders confirming that your role cannot be easily filled through conventional hiring.
Format and Organization
While USCIS does not provide a standardized checklist for NIW filings, proper organization can strengthen your petition. Best practices include:
- Clear headings and subheadings.
- A numbered exhibit list or table of contents.
- A petition letter referencing specific pieces of evidence.
- Consistent formatting across all documents.
- Certified English translations for any non-English document.
Evidence should be arranged logically and reviewed as a whole. USCIS evaluates the petition in the aggregate, not by checking off individual items.
Summary Table: EB-2 and NIW Requirements
| Category | Requirement Type | What USCIS Looks For | Examples of Supporting Evidence |
| EB-2: Advanced Degree | Education | A U.S. master’s degree or higher, or a foreign equivalent. Alternatively, a U.S. bachelor’s degree plus at least five years of progressive post-baccalaureate experience in the specialty, directly related to the proposed endeavor. | Degree certificates, academic transcripts, foreign credential evaluations, employer letters detailing progressive work experience. |
| EB-2: Exceptional Ability | Skill/Expertise | Expertise significantly above that ordinarily encountered in the sciences, arts, or business. Must meet at least three of six regulatory criteria, with the area of exceptional ability directly related to the proposed endeavor. | Academic records, licenses or certifications, letters verifying 10+ years of experience, evidence of high salary, awards, professional association memberships, comparable evidence if applicable. |
| NIW Prong 1: Substantial Merit and National Importance | Nature and Impact of Work | Work with measurable merit in any field (science, healthcare, education, etc.) and potential to impact the United States beyond a local level. | Publications, citations, policy impact, letters from government agencies, evidence of national relevance or scalability. |
| NIW Prong 2: Well Positioned to Advance the Work | Applicant’s Ability | A clear track record and relevant qualifications to carry out or expand the proposed endeavor. | CV, personal statement or plan, prior accomplishments, expert letters, institutional support, funding access. |
| NIW Prong 3: Balancing Test | National Interest vs. Labor Certification | A waiver is more beneficial to the United States than requiring a job offer and labor certification. | Explanation of why traditional hiring is impractical, time-sensitive contributions, shortage of comparable U.S. workers, value of uninterrupted work. |
Step-by-Step NIW Filing Process
The NIW petition process follows a series of steps. While the exact path depends on individual circumstances, these stages reflect current USCIS requirements as of January and July 2025.
Step 1: Confirm Eligibility
Before preparing your application, verify that you meet both EB-2 and NIW requirements. USCIS first determines EB-2 eligibility and then evaluates the NIW criteria. If EB-2 eligibility is not met, the NIW portion will not be reviewed.
Step 2: Gather Evidence
Collect all documentation that supports your petition. Organize it so it aligns with the description of your proposed endeavor. USCIS reviews evidence in the aggregate, meaning the strength of your case comes from the overall record, not just individual pieces.
Step 3: Complete Form I-140
File your petition using Form I-140, Immigrant Petition for Alien Worker.
- As of July 22, 2025, the Form I-140 filing fee is $715. You must also pay the Asylum Program Fee if required: $600 for regular petitioners, $300 for small employers or self-petitioners, and $0 for nonprofits. Complete Form I-140 Part 1, Items 5 and 6 so USCIS can determine the correct APF category.
- Always download the most recent form from the USCIS website and follow the current instructions.
- Include the correct classification (E21 for NIW) in the form.
Step 4: Determine Filing Location
In January 2025, USCIS updated the lockbox addresses and filing procedures for Form I-140. Verify the correct address in the current USCIS instructions before mailing. Sending your petition to the wrong location can cause delays or rejection.
Step 5: Consider Concurrent Filing
If a visa number is available in the EB-2 category according to the Department of State’s Visa Bulletin, you may submit Form I-485, Application to Register Permanent Residence or Adjust Status, together with your Form I-140.
- This is called concurrent filing. It is available if a visa number is immediately available in the EB-2 category according to the Department of State’s Visa Bulletin, and you are otherwise eligible to adjust status.
Step 6: Evaluate Premium Processing
Premium processing is available for NIW petitions under the E21 category.
- As of 2025, USCIS processes premium NIW petitions within 45 business days.
- The premium processing fee is the current amount listed on the USCIS Form I-907 page. Confirm the amount on the date you file.
- Premium processing speeds the decision on Form I-140 but does not guarantee approval or prevent Requests for Evidence (RFEs).
Step 7: Track Your Case
Once you receive your USCIS receipt notice, use the receipt number to check case status online at the USCIS Case Status portal. Monitoring your case helps you act promptly if USCIS sends a notice.
Step 8: Respond to Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs)
If you receive an RFE or NOID, respond by the deadline with complete, well-organized documentation. Your response must address every issue raised in the notice.
Step 9: Final Decision and Next Steps
If USCIS approves your petition and you filed Form I-485, your adjustment of status will continue. If you are outside the United States, the case will be forwarded to the National Visa Center (NVC) for consular processing.
- If denied, you may file an appeal with the Administrative Appeals Office (AAO) or submit a motion to reopen or reconsider.
Strategies for a Strong NIW Petition
Preparing an NIW petition requires a clear, credible, and evidence-based case that shows USCIS how your work benefits the United States and why you are able to advance it here. The steps below explain what to do, provide a concrete example, and state why an adjudicator would likely find it helpful.
Tie every exhibit to a specific NIW prong
Explain how each document supports Substantial Merit and National Importance, Well Positioned to Advance the Endeavor, or the Balancing Test. Do not assume the connection is obvious.
Example: You submit a patent for a point-of-use arsenic removal filter. In the petition letter, you state that the filter addresses documented groundwater contamination in several U.S. regions (Prong 1). You then cite your prior pilot deployments and maintenance data to show capability to roll out at scale (Prong 2).
Why USCIS finds this valuable: The officer can map evidence directly to the legal test. That makes the decision easier to write and reduces the chance that useful documents are overlooked.
Use expert letters for specifics, not praise
Ask recommenders to describe concrete outcomes, adoption, and impact, and to explain why your contribution is distinct.
Example: A letter from a state health department official explains that your vaccination logistics model raised coverage in three counties by 18 percent in one season, and that the department plans to extend it statewide next year.
Why USCIS finds this valuable: Independent, detailed corroboration shows real-world results and national relevance. Specific metrics carry more weight than general compliments.
Anchor national importance with U.S. government sources
Cite federal reports, agency data, or national strategies that define the problem your work addresses.
Example: A grid-storage engineer cites Department of Energy data on storage targets, references a recent agency roadmap, and explains how a tested battery chemistry could help meet peak-load needs in multiple states.
Why USCIS finds this valuable: Government publications are authoritative. Aligning your endeavor with stated national goals supports the “national importance” analysis.
Show momentum and feasibility inside the United States
Pair past achievements with proof that you can execute here.
Example: You include a facility access letter from a U.S. lab, a memorandum of understanding with a university partner, and a project schedule that begins within six months of approval.
Why USCIS finds this valuable: Concrete arrangements demonstrate that benefits will materialize after immigration, which strengthens the “well positioned” finding.
Address the balancing test directly
Explain why the waiver provides a greater benefit than the usual job offer and labor certification route.
Example: A founder explains that the endeavor requires working with multiple utilities and research partners across states, that no single employer controls the project, and that waiting for PERM would delay deployments tied to seasonal grid demand.
Why USCIS finds this valuable: Clear, case-specific reasons help the officer conclude that waiving the job offer requirement advances U.S. interests more than enforcing a traditional hire.
Keep facts consistent across forms, letters, and exhibits
Verify dates, titles, project names, funding amounts, and metrics.
Example: Your CV lists Senior Research Engineer from 2021 to 2023. Each letter that mentions this role uses the same title and dates, and project reports show matching timelines.
Why USCIS finds this valuable: Consistency builds credibility and reduces the need for Requests for Evidence that can slow or jeopardize the case.
Organize like a legal brief
Use a table of contents, an exhibit index, and clear headings that mirror EB-2 eligibility and each NIW prong. Cross-reference exhibits in the petition letter.
Example: Section headings read “Prong 1: Substantial Merit and National Importance,” “Prong 2: Well Positioned,” and “Prong 3: Balancing.” Each paragraph cites exhibits by number and page, for example “Ex. 7 at p. 3.”
Why USCIS finds this valuable: A clear roadmap speeds review and helps the officer connect your arguments to the record.
Prioritize quality over volume
Select evidence that is credible, relevant, and easy to verify.
Example: Instead of attaching every talk you have given, you choose keynote invitations from nationally recognized conferences and include programs, agendas, and video links. For publications, you include full citations and a brief summary of relevance.
Why USCIS finds this valuable: Strong, targeted proof improves the signal-to-noise ratio and supports a focused written decision.
Explain technical work in plain English
Add short, non-technical summaries so a generalist can understand why your work matters.
Example: A one-page overview explains how a quantum sensor improves maritime navigation accuracy and lists U.S. civil and defense uses. Technical appendices follow for depth.
Why USCIS finds this valuable: Clear, accessible explanations help the officer grasp national impact without needing a specialist background.
Show scalability beyond a single project or location
Describe how your model can be replicated or expanded across regions, sectors, or agencies.
Example: A city pilot for wastewater nutrient removal includes a plan for replication in small and mid-sized municipalities, with cost estimates and staffing templates that make adoption realistic.
Why USCIS finds this valuable: Demonstrated potential for wider benefit supports the conclusion that the endeavor is nationally important rather than narrowly local.
Document both credentials and deployment
Prove qualifications and show how they translate into U.S. deployment steps.
Example: Degrees and licenses establish background. A short deployment plan lists milestones, partners, and success metrics for the first twelve months in the United States.
Why USCIS finds this valuable: The officer can see capability and execution in the same record, which supports both EB-2 eligibility and the NIW prongs.
Use accurate translations and complete copies
Provide certified English translations and full documents, not excerpts that omit key context.
Example: A grant award notice appears in full with the award amount, period, scope, and sponsor, plus a certified translation if not in English.
Why USCIS finds this valuable: Complete, readable records reduce doubts and prevent avoidable evidence requests.
Common Mistakes to Avoid in NIW Petitions
Even well-qualified applicants risk delays or denials due to avoidable errors. Understanding these common pitfalls can help you prepare a cleaner, stronger case from the start. This section highlights frequent mistakes and explains their impact.
Missing or Incorrect Forms and Fees
Mistake: Using outdated USCIS forms or paying incorrect fees is a common but serious error.
Example: Submitting a 2023 edition of Form I-140 instead of the latest 2025 edition, or paying fees based on rates before the July 22, 2025 adjustment.
Why this matters: USCIS often rejects petitions outright for form or fee errors without reviewing eligibility or merits. This results in delays and additional costs.
Tip: Always check USCIS’s official website for the latest forms and fee information before filing.
Failure to Submit Certified English Translations
Mistake: Including foreign-language documents without certified English translations can invalidate crucial evidence.
Example: A foreign diploma or employment verification letter submitted only in the original language.
Why this matters: USCIS requires certified translations to understand and verify foreign documents. Missing translations cause delays or evidence being disregarded.
Tip: Use professional translators and include a signed certification confirming accuracy with every foreign document.
Inconsistent or Contradictory Information
Mistake: Discrepancies in employment dates, job titles, or educational credentials between forms, letters, and resumes.
Example: A recommendation letter states a different employment period than Form I-140 or your CV.
Why this matters: Such inconsistencies raise questions about your credibility and may trigger Requests for Evidence (RFEs) or denials.
Tip: Carefully review all documents for consistency before filing. When in doubt, clarify minor discrepancies proactively in your petition letter.
Overloading the Petition with Irrelevant or Excessive Documents
Mistake: Submitting every certificate, training, or minor achievement regardless of relevance.
Example: Including dozens of certificates for unrelated short courses or minor conference attendances.
Why this matters: Excess documentation buries critical evidence and can overwhelm adjudicators, who must sift through pages of less important material.
Tip: Focus on documents that directly support your eligibility and NIW criteria. Quality and relevance matter more than quantity.
Ignoring the Latest USCIS Policy and Fee Updates
Mistake: Using outdated filing instructions or sending petitions to incorrect USCIS lockbox addresses.
Example: Filing your petition at an old mailing address or using obsolete guidance found on unofficial sites.
Why this matters: USCIS updates procedures regularly. Ignoring these can lead to rejected or delayed cases.
Tip: Verify current filing locations, procedures, and fee schedules on the official USCIS website before submission.
Neglecting to Explain Technical Terms or Industry Jargon
Mistake: Using complex technical language or acronyms without explanations.
Example: Describing your research methods in dense scientific terms without clarifying their practical implications.
Why this matters: USCIS officers may not be specialists in your field. Lack of clarity can cause misunderstanding and undervalue your contributions.
Tip: Include brief, plain-language summaries that explain the significance and potential impact of your work.
Poor Organization and Lack of Cross-Referencing
Mistake: Submitting evidence without a table of contents, exhibit labels, or referencing exhibits in the petition letter.
Example: Sending 100 pages of mixed documents with no clear index or references.
Why this matters: A disorganized petition slows review and increases the risk that important evidence is missed or misunderstood.
Tip: Number exhibits, create a detailed table of contents, and refer to each piece of evidence clearly in your petition letter.
Filing Adjustment of Status without Confirming Visa Availability
Mistake: Applying for Form I-485 adjustment of status when a visa number is not yet available for your EB-2 category and country.
Example: Submitting Form I-485 when the Department of State Visa Bulletin shows “unavailable” for your priority date.
Why this matters: USCIS will reject your adjustment application if a visa number is unavailable at the time of filing.
Tip: Always check the monthly Visa Bulletin before filing adjustment paperwork.
Preventing these common errors improves your petition’s clarity and credibility, reducing delays and increasing your chance of approval. Take time to double-check your forms, evidence, and filing instructions before submission.
After You File – Waiting and Responding to USCIS
Once your NIW petition is filed, the process shifts into a waiting phase. Although this period can be unpredictable, knowing what to expect and how to respond to USCIS requests will help you stay in control.
Receipt Notice
After USCIS accepts your petition, they will issue Form I-797, Notice of Action, confirming your case has been received. This document includes your receipt number, which allows you to track your case online. Keep this notice in a safe place, as it is your official proof of filing.
Tip: Use the USCIS Case Status Online tool to check for updates. Case processing times vary, but if your petition is outside the normal timeframe posted on USCIS’s website, you may submit an inquiry.
The Waiting Period
NIW petitions are reviewed in the order received. Processing can take several months or more. It is normal for there to be no visible progress for a long time, and then suddenly receive a request for additional evidence or a decision. Avoid making major plans based solely on estimated timelines.
If you filed with premium processing, USCIS will take action on your case within 45 calendar days for E21 NIW petitions. This action could be an approval, denial, or a Request for Evidence (RFE).
Requests for Evidence (RFEs)
An RFE is not a denial. It is a chance to strengthen your case. USCIS sends an RFE when they believe more information is needed before a decision can be made.
How to respond:
- Read the notice carefully and note the deadline.
- Address every issue raised by USCIS.
- Include organized, clearly labeled evidence that directly responds to their questions.
- Do not send unrelated documents that could dilute your response.
Notices of Intent to Deny (NOIDs)
A NOID signals USCIS is leaning toward denial but will allow you to respond before making a final decision. These notices are more serious than RFEs and often mean USCIS has substantial doubts about eligibility.
How to respond:
- Review the reasons for the intended denial and address each one directly.
- Provide strong, credible evidence that overcomes the concerns raised.
- Consider consulting an experienced immigration attorney to prepare a comprehensive response.
Address Changes
If you move while your petition is pending, you must update your address with USCIS using Form AR-11 (Change of Address). Failure to do so can result in missed notices and potential denial.
Final Decision
When USCIS approves your NIW petition:
- If you filed Form I-485 concurrently, your adjustment of status process continues.
- If you are outside the United States, your case is sent to the National Visa Center for consular processing.
If your petition is denied:
- You may file an appeal with the Administrative Appeals Office (AAO) or submit a motion to reopen or reconsider.
- Review the denial notice carefully to determine the most appropriate next step.
Frequently Asked Questions (FAQs)
How long does USCIS typically take to process an NIW petition?
USCIS publishes case processing timelines via their Processing Times tool, showing how long forms like I-140 take at each service center. Premium processing for NIW (E21) petitions guarantees adjudication, including approval, denial, or Request for Evidence (RFE), within 45 business days.
Can NIW petitioners change jobs or employers?
Yes. NIW petitions are self-filed and not tied to any employer. After filing, you may change employers or become self-employed as long as your new work aligns with your proposed endeavor.
What if the NIW petitioner is a physician, can they switch employers?
Yes, subject to conditions. Physician NIW approvals are subject to statutory service requirements. The physician must complete 5 years of full-time service in a designated shortage area or at a VA facility, as certified by the appropriate agency. Changes in employer or location are permitted only if the new position continues to meet these service conditions.
What happens if the approved NIW petitioner is outside the U.S.?
Once approved, USCIS forwards the case to the National Visa Center (NVC). The NVC coordinates the next steps for consular processing, including document collection and visa interview scheduling at a U.S. Embassy or Consulate.
Does the J-1 two-year home residency requirement block filing an NIW?
No. The INA §212(e) requirement does not prevent filing or adjudication of an NIW I-140 petition. That said, it may affect your ability to adjust status later, depending on waiver status.
If the NIW petition is denied, what options are available?
If USCIS denies an NIW petition, you may file:
- an appeal with the Administrative Appeals Office (AAO), which aims to complete reviews within 180 days, or
- a motion to reopen or reconsider within USCIS, depending on the specifics of the denial.
Can I file Form I-485 concurrently with the NIW (Form I-140)?
Yes, but only if a visa number is available for your EB-2 category per the Visa Bulletin. This is called concurrent filing. It lets you file both forms at the same time if the visa is immediately available.
Can I travel while my Form I-140 is pending?
You may travel outside the U.S. while your I‑140 is pending. The petition process itself is not affected by travel; however, to reenter lawfully, you must have a valid visa (such as H-1B, L-1, or O-1). If you have filed Form I‑485 for adjustment of status and do not hold valid H-1B or L-1 status, you must obtain Advance Parole (Form I‑131) before departing; otherwise, USCIS will consider your adjustment application abandoned.
The January 2025 USCIS policy recognizes STEM fields, particularly critical and emerging technologies, as having potential national importance. However, all NIW petitions must meet the same three-prong legal test regardless of field.
Hypothetical NIW Case Study
Disclaimer: The following case study is a hypothetical example created for educational purposes. It is not based on any specific individual and does not represent an actual USCIS decision. While the scenario is modeled on real USCIS requirements and uses examples consistent with official guidance, every NIW case is unique and outcomes depend on the specific facts and evidence provided.
Overview
Imagine a foreign national with expertise in biomedical engineering who has developed a low-cost, portable dialysis device designed for rural and underserved communities. The technology reduces reliance on large dialysis centers, lowering costs and improving access to care. The goal is to partner with U.S. hospitals, veterans’ clinics, and nonprofit organizations to deploy the device in regions with documented shortages in kidney treatment facilities.
Meeting EB-2 Eligibility
EB-2 Advanced Degree Requirement:
- Holds a U.S. Ph.D. in Biomedical Engineering (meets advanced degree criteria under 8 CFR § 204.5(k)(2)).
- More than five years of progressively responsible research experience after earning a master’s degree, with roles advancing from junior researcher to principal investigator.
Evidence Submitted:
- Doctoral diploma and transcripts.
- Letters from prior employers detailing job duties, dates of employment, and evidence of increasing responsibilities.
- NIH grant award letters documenting leadership on federally funded projects.
NIW Prong 1: Substantial Merit and National Importance
Why It Qualifies:
- Chronic kidney disease affects over 37 million Americans, according to the Centers for Disease Control and Prevention (CDC).
- The Department of Health and Human Services (HHS) identifies improved dialysis access as a national healthcare priority.
- The device’s portability and cost-effectiveness have the potential to improve healthcare delivery nationwide, especially in rural and underserved areas.
Evidence Submitted:
- CDC and HHS reports on dialysis access disparities.
- Letters from nephrology associations highlighting the technology’s potential national benefit.
- Peer-reviewed publications showing clinical trial results and projected healthcare cost savings.
NIW Prong 2: Well Positioned to Advance the Proposed Endeavor
Why It Qualifies:
- Proven record in biomedical device development, with multiple patents and leadership roles in clinical trials.
- Signed memorandums of understanding (MOUs) with U.S. hospital systems to begin device deployment within 12 months of NIW approval.
Evidence Submitted:
- Curriculum vitae listing patents, publications, and past deployments of medical devices.
- Letters of intent from hospitals and nonprofits confirming participation in pilot programs.
- Documentation showing initiation of the FDA clearance process for the device.
NIW Prong 3: On Balance, Beneficial to the United States
Why It Qualifies:
- Labor certification would require a single job offer, but the project involves multiple hospitals and nonprofits, making traditional PERM impractical.
- Delays from the labor certification process would postpone treatment for patients in urgent need.
Evidence Submitted:
- Petition letter explaining the multi-partner project structure.
- Federal data on dialysis patient wait times in rural regions.
- Economic impact projections showing potential Medicare savings from reduced hospitalization.
Filing and Waiting
- Filed Form I-140 under E21 classification with NIW request.
- Included Form ETA-9089, Appendix A, and verified July 2025 fee schedule on USCIS.gov: $715 I-140 fee + $600 Asylum Program Fee.
- Mailed to the correct lockbox address per January 2025 USCIS filing instructions.
Responding to a Request for Evidence (RFE)
RFE Reason:
- USCIS requested proof of scalability beyond the initial pilot regions.
Response Submitted:
- Expanded deployment plan showing implementation across 18 states within three years.
- Letter from the Department of Veterans Affairs expressing interest in using the device nationwide.
- Updated budget and manufacturing plan.
Approval
Six months after filing, USCIS approved the NIW petition. Since Form I-485 was filed concurrently (visa number available per the Visa Bulletin), adjustment of status processing continued without delay.
Practical Lessons for Applicants:
- Back every NIW prong with both independent expert letters and U.S. government data.
- Present a realistic U.S. deployment plan with clear timelines.
- Anticipate potential RFEs and have supplementary documentation ready in advance.
*IMPORTANT DISCLAIMER AND VERIFICATION NOTICE
This document provides general guidance based on available information as of August 2025. Immigration law, USCIS policies, fees, forms, and procedures change frequently and without advance notice.
ALWAYS verify the following directly from official USCIS sources before filing:
- Current filing fees – Check the official USCIS Fee Schedule (Form G-1055) at uscis.gov/g-1055
- Form edition dates – Ensure you’re using the most recent version of all forms from uscis.gov
- Filing addresses – Verify current lockbox addresses from official USCIS filing instructions
- Processing times – Check current timeframes at uscis.gov processing times tool
- Policy updates – Review the USCIS Policy Manual and recent policy alerts
This information does not constitute legal advice. Immigration cases involve complex individual circumstances. Consider consulting with a qualified immigration attorney familiar with current law and practice, especially for cases involving unique circumstances, prior denials, or complicated eligibility questions.
Sources
- Form I‑140, Immigrant Petition for Alien Workers (USCIS page)
https://www.uscis.gov/i-140 - Fee Schedule (Form G‑1055)
https://www.uscis.gov/g-1055 - Guidance on Asylum Program Fee for I‑140
https://www.uscis.gov/newsroom/alerts/guidance-on-paying-fees-and-completing-information-for-form-i-140-immigrant-petition-for-alien - How to Request Premium Processing (I‑907, including 45 business-day standard)
https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing - Form I‑907, Request for Premium Processing Service (USCIS page)
https://www.uscis.gov/i-907 - Policy Manual, Volume 6, Part F, Chapter 5 – EB‑2 NIW (January 15, 2025 update)
https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-eb-2-national-interest-waiver-petitions - USCIS Policy Manual, Volume 6, Part F, Chapter 5 (NIW guidance)
https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5 - NIW for Physicians (service in underserved areas/VA)
https://www.uscis.gov/green-card/green-card-eligibility/green-card-through-a-physician-national-interest-waiver-niw - Policy Manual, Volume 6, Part F, Chapter 6 – Physician NIW additional requirements
https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-6 - How to Change Your Address — AR‑11 (self-service tool)
https://www.uscis.gov/addresschange - Policy Manual, Volume 1, Part A, Chapter 10 – Address change procedures
https://www.uscis.gov/policy-manual/volume-1-part-a-chapter-10 - Policy Alert – Second Preference Eligibility for NIW (January 15, 2025)
https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20250115-Employment-BasedNationalInterestWaivers.pdf - Policy Manual main page (central portal)
https://www.uscis.gov/policy-manual - Forms Updates – edition dates (e.g., for I‑140 edition)
https://www.uscis.gov/forms/forms-updates - Checklist of Required Initial Evidence for Form I‑140 – including physician NIW
https://www.uscis.gov/forms/filing-guidance/checklist-of-required-initial-evidence-for-form-i-140-for-informational-purposes-only