The possibility to apply for National Interest Waiver (NIW) is a subset of the Employment-Based Immigration Second Preference (EB-2) category. Similar to other employment-based categories, changing jobs and adjusting one’s immigration status requires the utmost attention. 

What happens to approved EB-2 NIW applicants when changing jobs? Read on to find out.  

EB-2 National Interest Waiver (NIW) – Explaining the Concept  

The United States Citizenship and Immigration Services (USCIS) requires EB-2 applicants to have a US job offer. Hence, a US employer must apply on their behalf. Another aspect of standard EB-2 applications is the labor certification requirement. 

Prospective EB-2 employers must complete the labor certification process (PERM) with the US Department of Labor (DOL) to demonstrate that the employment of foreign labor will not negatively affect the wages and working conditions of US workers.  

After obtaining DOL approval, EB-2 employers may file form I-140 (Petition for Alien Worker) with USCIS. This process can be time-consuming for foreign applicants, as they do not have self-reliance and depend on the approval of different procedures before the actual application goes through processing. 

An alternative offered by USCIS is to file for a National Interest Waiver (NIW), which allows an EB-2 applicant to waive the job offer and labor certification requirement because “it is in the interest of the United States.” 

How to Qualify for an NIW with USCIS  

The first advantage of an NIW is that applicants can self-petition with USCIS, which automatically waives the requirement of an employer to sponsor them. The primary eligibility requirement for an NIW is to qualify for EB-2 status. 

There are two subcategories of applicants eligible for EB-2 classification – members of the professions holding an advanced degree or its equivalent, or individuals with exceptional ability. 

Those applying based on advanced degrees must have at least a baccalaureate or foreign equivalent degree plus five years of post-baccalaureate, progressive work experience in the field. 

Those applying based on exceptional ability must be able to show “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” 

Determining the eligibility of an applicant’s endeavor for a national interest waiver (NIW) is not based on statutory definitions. Instead, USCIS relies on a three-pronged method to assess whether an applicant may qualify for an NIW: 

  • The proposed endeavor must have substantial merit and national importance 
  • The applicant must be well-positioned to advance the proposed endeavor, and  
  • The proposed endeavor would be beneficial to the United States in a way that allows USCIS to waive the job offer and labor certification requirements  

Changing Jobs After NIW Approval – A Realistic Overview 

Changing jobs under visa categories that depend on a job offer is usually a challenging experience, as any failure to observe the applicable portability rules may result in green card denials. 

Fortunately, the EB-2 National Interest Waiver does not require a job offer, which automatically makes it not subject to the portability rules. Foreign nationals living in the United States under EB-2 NIW status can change employers at any time – as long as they continue to work in the segment of national interest approved by USCIS. 

Protect Your EB-2 NIW Status – Immediately Seek Expert Legal Guidance 

Whether you want to obtain an EB-2 NIW visa or protect your current status, Immigration Attorney Romy B. Jurado willingly wants to help you succeed. Contact us by calling (305) 921-0976 or emailing [email protected] to schedule a consultation.