EB2 Visa Guide: Requirements, Process, and National Interest Waiver

Author: Zoe Ji Wilson, Esq.

Overview

The U.S. immigration system offers a diverse array of pathways for foreign nationals seeking lawful permanent residency (green cards). Among these options, the EB-2 employment-based immigrant visa category stands out as a highly attractive option for individuals possessing advanced degrees or demonstrating exceptional ability. The EB-2 classification is rooted in Section 203(b)(2) of the Immigration and Nationality Act (INA), which provides immigrant visas for professionals who can contribute to the U.S. workforce and economy at a high level of expertise.

What is the EB-2 Visa?

The EB-2 visa category offers two primary pathways for individuals seeking U.S. permanent residency based on their professional qualifications and ability to contribute to the national interest:

1. Employer-Sponsored EB-2 (PERM-Based EB-2A and EB-2B)

This pathway includes both the Advanced Degree (EB-2A) and Exceptional Ability (EB-2B) subcategories. While the eligibility criteria differ slightly between these two, both require an employer sponsor and a permanent job offer in the United States. In both cases, the employer must complete the labor certification process, also commonly referred to as PERM (Program Electronic Review Management), to demonstrate that no qualified U.S. workers are available for the offered position.

• • EB-2A: Advanced Degree Professionals

    This subcategory is intended for individuals who hold an advanced degree (such as a master’s degree or higher), or the equivalent combination of a U.S. bachelor’s degree followed by at least five years of progressive, post-baccalaureate work experience in their field. The U.S. employer must sponsor the applicant by offering a permanent, full-time position that requires such qualifications.

  • EB-2B: Individuals of Exceptional Ability

    This subcategory applies to individuals who possess a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. While this standard is less stringent than the "extraordinary ability" standard required for an EB-1A petition, it nonetheless demands substantial evidence that the applicant’s expertise places them well above the majority of their professional peers. To qualify for EB-2B classification, an individual must meet at least three of the following six regulatory criteria, as outlined under 8 CFR § 204.5(k)(3)(ii):

1. 1. Official academic record showing that the applicant has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
   2. Letters documenting at least 10 years of full-time experience in the occupation for which the applicant is being sought;
   3. A license to practice the profession or certification for the profession or occupation;
   4. Evidence that the applicant has commanded a salary or other remuneration for services that demonstrates exceptional ability;
   5. Membership in professional associations that require outstanding achievements of their members, as judged by recognized national or international experts in the field;
   6. Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

Importantly, USCIS considers the totality of the evidence when determining whether the applicant qualifies for exceptional ability. The more comprehensive and well-documented the evidence presented, the stronger the petition will be. To qualify, applicants must submit extensive documentation demonstrating sustained national or international acclaim, significant professional accomplishments, and recognition in their field. Like the EB-2A, this route also requires a valid job offer from a U.S. employer and successful completion of the PERM labor certification process.

In both EB-2A and EB-2B cases, the labor certification process is designed to protect the U.S. labor market by ensuring that there are no able, willing, qualified, and available U.S. workers for the position being offered to the foreign national.

2. Self-Petitioned EB-2 (National Interest Waiver - EB-2C)

The National Interest Waiver (NIW) pathway offers a distinct alternative within the EB-2 category for qualified individuals whose work provides substantial benefit to the United States. Unlike the employer-sponsored EB-2A and EB-2B subcategories, the National Interest Waiver allows applicants to self-petition, eliminating the need for both a permanent job offer and the labor certification (PERM) process. This provides significant flexibility for professionals whose work advances important societal, scientific, economic, or policy interests.

Before an applicant may pursue an NIW, they must first meet the same baseline eligibility as required for all EB-2 applicants.They must either:

1. Hold an advanced degree (or its equivalent: a U.S. bachelor’s degree plus at least five years of progressive, post-baccalaureate work experience); or
2. Demonstrate exceptional ability in the sciences, arts, or business, as defined by the regulatory criteria under 8 CFR § 204.5(k)(3)(ii).

Once this threshold is satisfied, the applicant may then seek a waiver of the job offer and labor certification by demonstrating eligibility under the NIW standard. To qualify under the NIW, applicants must satisfy the three-prong test established in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), by demonstrating:

1. Substantial merit and national importance of their proposed endeavor;
2. That they are well-positioned to advance the endeavor; and
3. That on balance, it would benefit the United States to waive the requirements of a job offer and labor certification.

The NIW is particularly well-suited for professionals working in sectors such as science, technology, healthcare, engineering, education, business innovation, national security, and public policy, where individual contributions can significantly advance U.S. national priorities. Because no employer sponsorship is required, the applicant assumes full responsibility for compiling and submitting a robust evidentiary record demonstrating both eligibility and national interest under the Dhanasar framework. The quality, depth, and credibility of this documentation are central to a successful petition. Whether you are applying with an employer or filing on your own, we can guide you through the EB-2 process.

Annual Visa Cap and Availability

The EB-2 visa category is subject to an annual numerical cap established by the Immigration and Nationality Act (INA). Each fiscal year, approximately 40,000 immigrant visas are allocated specifically for EB-2 principal applicants, in addition to visas made available from unused numbers in the EB-1 category, which may “spill down” to EB-2.

Within this allocation, the law imposes a per-country limit to ensure that no single country dominates the annual visa distribution. Under current statutory provisions, nationals of any single country may receive no more than 7% of the total number of employment-based immigrant visas issued in a given fiscal year. This per-country limit often leads to significant backlogs for nationals of countries with high demand, most notably India and China, while applicants from countries with lower demand may experience much shorter waiting times.

One of the most favorable aspects of the EB-2 visa category is its year-round availability. Unlike certain nonimmigrant visa categories that only operate on annual lottery systems or cap deadlines, such as the H-1B, the EB-2 visa process has no fixed filing window. Applicants may submit their petitions at any point throughout the year, provided that visa numbers remain available and their priority date is current according to the U.S. Department of State’s monthly Visa Bulletin. This allows qualified applicants to strategically time their filings based on personal circumstances, visa bulletin movement, and legal strategy. The combination of the generous numerical allotment, year-round filing availability, and multiple eligibility pathways makes the EB-2 visa one of the most desirable options for highly qualified foreign nationals seeking U.S. permanent residency.

EB-2 Visa Benefits

The EB-2 visa offers numerous advantages that make it one of the most desirable permanent residency pathways for highly qualified foreign nationals. Whether through the employer-sponsored (PERM-based) route or the self-petitioned National Interest Waiver (NIW) option, EB-2 applicants enjoy substantial immigration, professional, and personal benefits that can lead to long-term stability and integration into U.S. society.

1. Path to U.S. Permanent Residency

The most fundamental benefit of the EB-2 visa is that it leads directly to lawful permanent residency (LPR), also commonly referred to as a “green card.” Unlike temporary nonimmigrant visas, which are subject to expiration, renewal requirements, and limitations on employment and residence, permanent residency allows foreign nationals to live and work indefinitely in the United States.

Once granted permanent resident status, EB-2 beneficiaries have the right to:

• Reside permanently anywhere in the United States;
• Work for any employer, change employers freely, or become self-employed;
• Travel internationally with greater ease and fewer restrictions compared to most nonimmigrant statuses.

Additionally, permanent residents may eventually apply for naturalization and obtain U.S. citizenship, provided they meet the statutory residency and physical presence requirements, demonstrate good moral character, and satisfy the other conditions set forth under the Immigration and Nationality Act.

2. Family Members Included (Derivative Beneficiaries)

The EB-2 visa also extends permanent residency benefits to the principal applicant’s immediate family members. Specifically, the spouse and any unmarried children under the age of 21 may apply as derivative beneficiaries and obtain their green cards concurrently with the principal applicant.

Spouses of EB-2 visa holders may apply for employment authorization, allowing them to work legally in the United States without restrictions on the type or location of employment. Children of EB-2 visa holders may enroll in U.S. schools and universities and enjoy the full range of educational opportunities and benefits available to U.S. residents. This ability to secure lawful status and economic security for the entire family unit is a significant advantage that makes the EB-2 category highly attractive for skilled professionals considering relocation to the United States.

3. Professional Flexibility and Long-Term Security

Once permanent residency is granted, EB-2 visa holders are not tied to a specific employer or job position, providing substantial professional flexibility. Green card holders may pursue new career opportunities, entrepreneurial ventures, or advanced education without the restrictions often imposed by temporary nonimmigrant work visas.

This stability and flexibility are particularly valuable for individuals in industries that are rapidly evolving or for those engaged in research, innovation, and entrepreneurial activities. Permanent residency allows foreign nationals to make long-term personal, professional, and financial commitments in the United States with confidence.

4. Unique Self-Petition Option for National Interest Waiver (EB-2C)

One of the most distinctive benefits within the EB-2 category is available through the National Interest Waiver (NIW). Unlike the employer-sponsored EB-2A and EB-2B subcategories, the National Interest Waiver allows qualified individuals to self-petition, removing the need for an employer job offer or the labor certification process.

This self-petitioning mechanism offers several strategic advantages:

• Greater independence and control over the petitioning process;
• No requirement to obtain sponsorship or maintain a specific employer relationship;
• Flexibility to work across multiple projects, employers, or self-directed endeavors;
• Ideal for researchers, entrepreneurs, physicians, public interest professionals, and others whose work aligns with U.S. national priorities.

Because of these benefits, the NIW is often the preferred option for individuals whose work transcends traditional employment models and contributes to critical sectors such as public health, national security, technological innovation, energy, education, and global competitiveness.

The combination of permanent residency, family inclusion, professional freedom, and flexible petitioning pathways makes the EB-2 visa one of the most comprehensive and advantageous immigration options for foreign professionals seeking to establish long-term residence in the United States.

Who Qualifies For An EB-2 Visa?

Eligibility for the EB-2 visa is rooted in the applicant’s educational background, professional accomplishments, and overall ability to contribute meaningfully to the U.S. labor market or national interest. While the EB-2 category is more selective than some other employment-based immigrant visa classes, it offers multiple avenues of qualification, each designed to accommodate different types of skilled professionals.

The EB-2 visa category requires that applicants qualify under one of two general standards: Advanced Degree Professionals or Individuals of Exceptional Ability. In addition, a third pathway exists under the National Interest Waiver (NIW), which incorporates either of the first two thresholds as a prerequisite.

1. Advanced Degree Professional

The EB-2A subcategory is designed for foreign nationals who possess advanced academic credentials and are seeking permanent employment in the United States in positions that require such qualifications. This category generally targets individuals working in professional occupations such as engineering, healthcare, finance, technology, education, and other specialized fields.

Educational Qualifications

To qualify, the applicant must present evidence of either:

• An advanced degree (master’s degree or higher) from an accredited U.S. academic institution or a foreign equivalent degree; or
• A U.S. bachelor’s degree (or foreign equivalent) combined with at least five years of progressive, post-baccalaureate work experience in the applicant’s area of expertise.

Advanced Degree Definition

An “advanced degree” is defined as any degree above a bachelor’s level. In most cases, this includes a master’s degree, doctoral degree (Ph.D., M.D., J.D., etc.), or other terminal professional degrees that require significant academic coursework beyond the bachelor’s level. Professional equivalency evaluations may be required if the degree is from a foreign institution, to verify that the degree is comparable to a U.S. advanced degree.

For those without a master’s degree, the regulations allow applicants with a bachelor’s degree to substitute five years of progressive, post-baccalaureate work experience. The term “progressive experience” means that the work performed should reflect an increasing level of responsibility, complexity, and authority over time. It must be demonstrated that the applicant’s work evolved beyond entry-level duties and involved growing leadership or technical complexity.

Evidence of Progressive Experience

Applicants must submit detailed documentation to establish both the level and progressive nature of their work experience. Such evidence may include:

• Letters from current and former employers describing job titles, dates of employment, job duties, and progression in responsibilities;
• Organizational charts showing the applicant’s promotion or role within the company structure;
• Performance evaluations demonstrating increasing responsibilities;
• Awards, recognitions, or certifications received during employment;
• Training certifications, licenses, or additional coursework demonstrating skill development;
• Salary progression records, if applicable.

Job Requirements

The offered position in the United States must itself require an advanced degree (or the bachelor’s degree plus five years of experience) as a minimum qualification. The U.S. employer must certify that the job cannot be performed by a minimally qualified U.S. worker without such credentials.

As with all employer-sponsored EB-2A petitions, the U.S. employer must complete the PERM Labor Certification process to verify that no qualified U.S. workers are available for the position and that hiring the foreign national will not negatively impact wages and working conditions for U.S. workers.

2. Individuals of Exceptional Ability (EB-2B Subcategory)

The EB-2B subcategory offers an alternative pathway for individuals whose skills, expertise and professional accomplishments significantly exceed those of ordinary practitioners in their field, even if they do not hold an advanced academic degree.

“Exceptional ability” is defined under 8 CFR § 204.5(k)(2) as “A degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

Unlike the more stringent “extraordinary ability” standard applicable to EB-1A, exceptional ability focuses on documented evidence of superior expertise and consistent professional recognition, but does not require the applicant to be at the very top of their field internationally.

Regulatory Criteria (8 CFR § 204.5(k)(3)(ii))

The applicant must meet at least three of the following six criteria:

1. Official academic record showing that the applicant has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
2. Letters documenting at least 10 years of full-time experience in the occupation for which the applicant is being sought;
3. A license to practice the profession or certification for the profession or occupation;
4. Evidence that the applicant has commanded a salary or other remuneration for services that demonstrates exceptional ability;
5. Membership in professional associations that require outstanding achievements of their members, as judged by recognized national or international experts in the field;
6. Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

Totality of the Evidence Standard

USCIS adjudicates exceptional ability petitions using a “totality of the circumstances” approach. This means that meeting three of the six criteria does not automatically guarantee approval. The quality, substance, and credibility of the evidence must collectively demonstrate that the applicant indeed possesses exceptional ability.

Further supporting evidence may include:

• Published articles, books, or presentations;
• Testimonials from recognized experts in the field;
• Media coverage;
• Invitations to serve on professional committees or advisory boards.

Like EB-2A petitions, EB-2B filings also require a PERM Labor Certification and a permanent job offer from a sponsoring U.S. employer.

3. National Interest Waiver Applicants (EB-2C Subcategory)

The National Interest Waiver (NIW) provides an important exception to the normal labor certification and job offer requirements applicable to EB-2A and EB-2B categories.

Baseline Eligibility

Before an applicant may seek a National Interest Waiver, they must first meet the EB-2 eligibility threshold by demonstrating either:

• Possession of an advanced degree (or bachelor’s degree plus five years of progressive post-baccalaureate experience), or
• Exceptional ability, as defined by the criteria described above.

Once EB-2 eligibility is established, the applicant may request that USCIS waive the labor certification and job offer requirements based on the national interest.

Matter of Dhanasar Three-Prong Test

In Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), USCIS clarified the standard for granting National Interest Waivers. Under Dhanasar, the applicant must establish:

1. Substantial Merit and National Importance

The proposed endeavor must have intrinsic merit, and its potential benefit must extend beyond the applicant’s personal success to broadly impact U.S. economic, scientific, cultural, or national interests.

2. Well-Positioned to Advance the Endeavor

The applicant must demonstrate the ability, qualifications, resources, and professional track record necessary to advance the proposed work successfully.

3. On Balance, Waiver Benefits the United States

The applicant must show that waiving the job offer and labor certification requirements would benefit the United States sufficiently to justify the exemption, typically by demonstrating the impracticality of requiring labor market testing for specialized or emerging fields.

NIW petitions are often pursued by individuals in fields such as:

• Public health and medicine;
• Biomedical research and clinical sciences;
• Engineering and technological innovation;
• Renewable energy and environmental science;
• Artificial intelligence and cybersecurity;
• Higher education and academic research;
• Public policy, economic development, and national security.

Self-Petition and Flexibility

Unlike employer-sponsored EB-2A or EB-2B petitions, NIW applicants may self-petition, which allows them to submit the I-140 petition on their own behalf. This self-petition process provides significant independence and flexibility for researchers, entrepreneurs, startup founders, and other highly skilled professionals whose work transcends traditional employment structures.

Because there is no employer involved, the burden falls entirely on the petitioner to present compelling evidence demonstrating both EB-2 eligibility and national interest under the Dhanasar standard.

EB-2 Visa Requirements - What USCIS Expects

While eligibility for the EB-2 visa rests on meeting specific statutory and regulatory standards, successful petitions depend heavily on how applicants present their evidence to USCIS. In this section, we focus not on the basic qualifications (already discussed), but rather on the evidentiary standards, adjudication process, and best practices that determine the strength of an EB-2 petition. Whether applying through the Advanced Degree (EB-2A), Exceptional Ability (EB-2B), or National Interest Waiver (EB-2C) pathways, applicants must submit a well-organized petition that clearly documents how they meet the relevant legal criteria. Unlike many government forms that require “check the box” submissions, EB-2 petitions are fundamentally narrative-driven: they require the applicant to present a coherent, persuasive story supported by objective evidence.

How EB-2 Evidence is Organized

Regardless of whether the EB-2 petition is employer-sponsored (PERM-based EB-2A or EB-2B) or self-petitioned under the National Interest Waiver (EB-2C), a successful petition requires a clear, comprehensive, and well-organized submission that helps USCIS adjudicators understand both the applicant’s eligibility and the legal basis for approval. Although some documentation differs between PERM-based and NIW cases, the following core components are common to all professionally prepared EB-2 petitions:

1. Legal Brief or Petition Letter

Every EB-2 petition should include a comprehensive legal brief or petition letter. This document serves as the narrative framework for the application, explaining:

• The applicant’s basic eligibility for EB-2 classification (whether based on advanced degree or exceptional ability);
• How the evidence satisfies the specific legal and regulatory standards applicable to the chosen subcategory;
• Any additional legal analysis relevant to the petition.

For employer-sponsored cases (EB-2A and EB-2B), the legal brief typically focuses on demonstrating that the job requires the stated qualifications, that the applicant meets those qualifications, and that the labor certification has been properly secured.

For NIW cases, the petition letter includes both EB-2 eligibility arguments and detailed legal analysis under Matter of Dhanasar to explain why the labor certification and job offer should be waived in the national interest.

In both cases, this legal brief acts as a roadmap for the USCIS officer, guiding them through the submitted evidence and directly linking each piece of documentation to the applicable legal standard.

2. Organized Evidence Exhibits

A successful EB-2 petition must be well-organized with a clear structure. Exhibits should be:

• Sequentially numbered or tabbed;
• Listed in an Exhibit List or Table of Contents;
  Cross-referenced in the legal brief or cover letter.

This format ensures the adjudicator can efficiently review the evidence and reduces the chance of confusion, misinterpretation, or unnecessary Requests for Evidence (RFEs).

3. Expert Opinion Letters

Expert letters serve as powerful third-party endorsements of the applicant’s qualifications, contributions, and the significance of their work.

• For EB-2B (Exceptional Ability) cases, expert letters help confirm that the applicant’s skills rise to a level significantly above that of ordinary professionals in their field.
• For NIW cases, expert letters focus on validating the national importance of the applicant’s work and their ability to advance it, addressing the Dhanasar prongs.
• Even in EB-2A cases, expert letters may be helpful, though not always required, to support claims of progressive experience or explain complex technical work.

Experts should have independent authority and recognized expertise in the applicant's field. Letters from current employers or colleagues may carry less weight than truly independent sources.

4. Objective Evidence of Impact

Beyond qualifications, both PERM-based and NIW petitions are strengthened when applicants provide tangible, measurable evidence of the real-world impact of their work. This may include:

• Citations to published research;
• Conference presentations;
• Patents or inventions;
• Contracts, licensing agreements, or commercial success indicators;
• Government funding, research grants, or private sector awards;
• Articles or media coverage recognizing the applicant’s contributions;
• Demonstrated improvements, innovations, or solutions implemented in the industry.

For PERM-based cases, such evidence helps reinforce the applicant’s qualifications; for NIW cases, it plays a central role in establishing national importance and the applicant’s ability to advance the endeavor.

5. Credential Evaluations

For applicants who obtained degrees outside the United States, credential evaluations are often required to establish U.S. equivalency. These independent evaluations verify whether a foreign degree qualifies as the equivalent of a U.S. bachelor’s, master’s, or higher-level degree. Credential evaluations are typically performed by authorized credential evaluation agencies, and should reference the applicant’s transcripts, academic coursework, and institution accreditation.

6. Employer and Financial Documentation (PERM-Based Only)

For EB-2A and EB-2B petitions filed through employer sponsorship, the employer must complete the PERM labor certification process, which is administered by the U.S. Department of Labor (DOL). This process serves as a safeguard for the U.S. labor market by ensuring that qualified U.S. workers are given priority for available positions before permanent jobs are offered to foreign nationals.

A critical part of the labor certification process is the employer’s obligation to conduct good-faith recruitment to test the U.S. labor market. The employer must demonstrate that it actively advertised the position and made genuine efforts to recruit qualified U.S. workers. Only after confirming that no qualified, willing, and available U.S. workers could be found may the employer proceed with filing the PERM application (Form ETA-9089).

The Recruitment Process

The PERM recruitment process is carefully regulated and involves multiple steps:

A. Prevailing Wage Determination

Before recruitment can begin, the employer must obtain a prevailing wage determination from the Department of Labor. This establishes the minimum salary that must be offered for the position based on geographic location, industry, and job duties. The employer must offer a wage that meets or exceeds this government-set wage level.

B. Mandatory Recruitment Steps

Once the prevailing wage is issued, the employer proceeds with recruitment, which includes both mandatory and additional recruitment activities depending on whether the position is classified as “professional.”

For most EB-2 positions, which are typically considered professional occupations, the following steps are required:

• Two Sunday Newspaper Advertisements

  The employer must place two ads in a newspaper of general circulation in the area of intended employment on two different Sundays. These ads must accurately describe the job duties and requirements and invite qualified applicants to apply.

• State Workforce Agency (SWA) Job Posting

  The employer must post the job opening with the state’s workforce agency for a period of 30 days.

• Internal Posting Notice (Job Posting at Worksite)

  The job opportunity must be posted physically at the employer’s worksite for at least 10 consecutive business days. If a union represents the position, the union must be notified directly.

C. Additional Recruitment Steps (for Professional Positions)

For positions classified as professional, the employer must conduct at least three additional recruitment efforts from the following list of options:

• Job fairs
• Employer’s website
• Job search websites
• On-campus recruiting
• Trade or professional organization postings
• Private employment firms
• Employee referral programs with documented incentives
• Campus placement offices
• Local or ethnic newspapers
• Radio or television ads

The employer may choose which three options to pursue but must maintain thorough documentation for each.

Recruitment Timing and Validity

All recruitment steps must occur within 180 days prior to filing the PERM application. The employer cannot file ETA-9089 until the recruitment period is complete and all qualified U.S. workers have been considered. If a qualified U.S. worker applies, the employer must document why the individual was not qualified based on legitimate, job-related, and nondiscriminatory reasons. Any rejection of a U.S. applicant must be thoroughly documented and supported.

Filing Form ETA-9089

Once recruitment is completed and no qualified U.S. workers are identified, the employer files Form ETA-9089 with the Department of Labor, certifying that all recruitment requirements were met and that no able, willing, qualified, and available U.S. workers were found. If DOL certifies the PERM labor certification, this approval becomes part of the I-140 immigrant petition package filed with USCIS.

Employer Financial Documentation

In addition to completing recruitment and obtaining a certified PERM, the employer must also demonstrate its ability to pay the offered wage to the foreign national. USCIS requires the employer to submit financial evidence such as:

• Corporate federal tax returns
• Audited financial statements
• Annual reports
• Payroll records or W-2 forms for the sponsored position

USCIS will review the employer’s financial standing from the time the labor certification is filed through the date the foreign worker receives permanent residency.

Why This Process Exists

The PERM labor certification system is designed to protect U.S. workers by ensuring they are considered first for available jobs. Only after a position has been properly advertised and no qualified U.S. workers have been found can a foreign national be sponsored for permanent employment. This entire process, wage determination, recruitment, application filing, and financial documentation, serves as the mandatory foundation for every employer-sponsored EB-2A and EB-2B petition.

7. ETA-9089 Form Use in National Interest Waiver (NIW) Petitions

While National Interest Waiver petitions do not require a PERM labor certification or employer sponsorship, NIW applicants are still required to submit Form ETA-9089 as part of their I-140 filing package.

For NIW cases, Form ETA-9089 is submitted in an informational capacity only.  It does not go through the Department of Labor for certification and is not used to test the labor market. Instead, USCIS uses the form to collect occupational and biographical data about the petitioner and the proposed employment or endeavor.

Key differences for NIW filings include:

• The petitioner may list themselves as the employer (self-petition).
• The form is submitted directly to USCIS along with Form I-140, without DOL processing or certification.
• No recruitment efforts, prevailing wage determination, or labor market testing are required.
• Employer financial documents are not necessary, as NIW filings do not rely on a job offer or employer’s ability to pay the wage.

This administrative use of ETA-9089 allows USCIS to maintain a consistent data collection format across all EB-2 subcategories while recognizing that the legal requirements differ between PERM-based and NIW-based filings.

While the legal standards and documentation requirements differ slightly between employer-sponsored and self-petitioned EB-2 cases, the core principles of petition preparation remain the same: clear legal argumentation, robust and well-organized evidence, and objective third-party validation that convincingly demonstrate the applicant’s qualifications and eligibility.

EB-2 Visa Process: Step-by-Step

While eligibility and documentation form the foundation of any EB-2 petition, understanding the process flow is equally important. Both employer-sponsored and self-petitioned EB-2 cases follow multi-stage procedures that involve several U.S. government agencies. The exact sequence depends on whether the petition is filed under the PERM-based (EB-2A/B) or National Interest Waiver (EB-2C) pathway.

1. EB-2A/B: Employer-Sponsored (PERM-Based) Process

Employer-sponsored EB-2 cases involve three major stages: labor certification, immigrant petition, and adjustment of status (or consular processing). Because this process requires both the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS), it is generally more time-intensive than NIW self-petitions.

The EB-2A and EB-2B processes begin with the labor certification phase, also known as PERM, administered by the U.S. Department of Labor (DOL). Before filing the PERM application, the employer must first obtain a prevailing wage determination from the DOL. This step establishes the minimum salary the employer must offer for the position, ensuring that hiring a foreign worker will not negatively impact U.S. wages.

Once the prevailing wage is established, the employer must conduct a recruitment process to test the labor market. This includes posting job advertisements, notifying current employees, and interviewing any potentially qualified U.S. workers who respond. If no qualified U.S. workers are identified, the employer may then file Form ETA-9089 with the DOL to request certification of the PERM labor certification.

When DOL certifies the PERM, the employer may move forward to file Form I-140, Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services (USCIS). The I-140 petition includes evidence of the foreign national’s qualifications, the certified labor certification, and financial documents proving the employer’s ability to pay the offered wage. In many cases, premium processing is available at this stage to expedite the decision.

After USCIS approves the I-140 petition, the applicant must wait for a visa number to become available based on the Department of State’s monthly Visa Bulletin. Once the priority date is current, the applicant proceeds to the final stage, either filing Form I-485 for adjustment of status if inside the U.S., or completing consular processing through Form DS-260 if residing abroad. Upon approval of this final stage, the applicant and eligible family members become lawful permanent residents.

2. The EB-2C National Interest Waiver (NIW) Process

The NIW process eliminates many of the procedural steps required in employer-sponsored cases. There is no labor certification, job offer, or recruitment process. Instead, the applicant self-petitions directly with USCIS by filing Form I-140 along with an uncertified Form ETA-9089 and comprehensive supporting documentation. This submission must demonstrate both eligibility for EB-2 classification (advanced degree or exceptional ability) and satisfaction of the national interest waiver standard under Matter of Dhanasar.

Because there is no employer involved, the petitioner bears full responsibility for assembling the evidence, preparing the legal arguments, and organizing the submission package. Many applicants in this category choose to retain counsel due to the complexity of the legal standard and the importance of strategic case presentation. Like PERM-based cases, premium processing is available for NIW filings, allowing USCIS to adjudicate the I-140 petition on an expedited timeline.

Once the I-140 is approved and a visa number becomes available, NIW applicants also proceed to either adjustment of status (Form I-485) or consular processing (Form DS-260), depending on where they reside at the time of filing. Spouses and children may apply for permanent residency as derivative beneficiaries at this stage.

Core Differences Between PERM-Based EB-2 and National Interest Waiver (NIW)

In essence, PERM-based cases place responsibility on both the employer and employee. The employer leads the initial labor market testing and certification process and must demonstrate its financial ability to employ the foreign worker. By contrast, NIW applicants control the entire process themselves but must present a far more detailed argument about how their work benefits the national interest, without any assistance from an employer or DOL labor market test.

In both routes, USCIS applies the same evidentiary standards when evaluating qualifications, but the procedural pathways differ sharply in structure, timing, and strategic considerations. While both PERM-based and NIW EB-2 processes ultimately lead to permanent residency, the route taken depends heavily on the applicant’s employment situation, field of work, long-term goals, and eligibility under the relevant legal standards.

EB-2 Visa Documents Checklist

Preparing a strong EB-2 petition requires not only meeting the eligibility criteria, but also assembling a complete and well-organized set of supporting documents. Regardless of whether the case is employer-sponsored (EB-2A/B) or self-petitioned through the National Interest Waiver (EB-2C), every petition must be supported by carefully curated evidence that clearly demonstrates the applicant’s qualifications, compliance with legal requirements, and overall eligibility for permanent residency.

While the precise documentation will vary depending on the applicant’s pathway, several categories of evidence consistently appear in nearly all EB-2 cases.

1. Personal Identification and Status Documents

Every EB-2 petition includes basic personal documents for the applicant and any accompanying family members. These typically include:

• Copies of passports for the applicant, spouse, and children.
• Birth certificates and marriage certificates to establish family relationships for derivative beneficiaries.
• Prior U.S. immigration documents if applicable (such as visa approvals, I-94 records, prior petitions, or adjustment of status filings).

These materials establish the applicant's identity and eligibility for immigrant classification and allow USCIS to properly process both the principal petition and any derivative applications.

2. Evidence of Educational Qualifications

The applicant’s academic background is a central element of every EB-2 petition, particularly for those qualifying under the advanced degree category. Required documentation may include:

• Degree certificates (bachelor’s, master’s, doctoral, or equivalent foreign degrees).
• Academic transcripts showing coursework completed.
• Professional evaluations for foreign degrees to confirm U.S. equivalency.
• Professional licenses or certifications required to practice the applicant’s profession, if applicable.

Even in Exceptional Ability and NIW cases, academic evidence strengthens the overall package by demonstrating the applicant’s educational foundation in the relevant field.

3. Employment and Work Experience Records

Documenting relevant work experience is critical, especially for EB-2A applicants qualifying with a bachelor’s degree plus five years of progressive experience, or for EB-2B Exceptional Ability petitions. Typical evidence includes:

• Letters from current and former employers verifying job titles, dates of employment, job duties, and the progressive nature of the applicant’s responsibilities.
• Performance evaluations, promotion records, or organizational charts showing advancement.
• Employment contracts or consulting agreements that document ongoing or past work.

In employer-sponsored petitions, these records must demonstrate that the applicant fully meets the job requirements described in the labor certification.

4. Employment and Work Experience Records

Documenting relevant work experience is critical, especially for EB-2A applicants qualifying with a bachelor’s degree plus five years of progressive experience, or for EB-2B Exceptional Ability petitions. Typical evidence includes:

• Letters from current and former employers verifying job titles, dates of employment, job duties, and the progressive nature of the applicant’s responsibilities.
• Performance evaluations, promotion records, or organizational charts showing advancement.
• Employment contracts or consulting agreements that document ongoing or past work.

In employer-sponsored petitions, these records must demonstrate that the applicant fully meets the job requirements described in the labor certification.

5. Evidence of Professional Recognition and Impact

For Exceptional Ability and National Interest Waiver petitions, evidence of the applicant’s real-world impact plays a critical role. This may include:

• Publications in peer-reviewed journals, books, or conference proceedings.
• Patents, inventions, or technical innovations credited to the applicant.
• Awards, honors, or recognitions from professional organizations, government entities, or academic institutions.
• Media coverage highlighting the applicant’s work or contributions.
• Letters from independent experts attesting to the applicant’s influence, expertise, and the significance of their contributions.

Such evidence demonstrates that the applicant’s expertise extends beyond personal qualifications to broader recognition within their field.

6. Labor Certification and Employer Evidence (PERM-Based Only)

For EB-2A and EB-2B employer-sponsored petitions, the petition must include:

• A certified PERM Labor Certification (Form ETA-9089) approved by the U.S. Department of Labor.
• Employer financial documents proving the ability to pay the offered wage, such as tax returns, audited financial statements, or annual reports.
• A job offer letter describing the offered position, salary, and required qualifications.

The employer’s compliance with the labor certification process and financial ability to employ the foreign worker are core legal requirements in these cases.

7. ETA-9089 Form (Administrative Use in NIW Cases)

For National Interest Waiver filings, the petitioner must still submit an ETA-9089 form with their I-140 petition. However, in these cases:

• The ETA-9089 is submitted directly to USCIS (not DOL) and is not certified.
• The form serves as a standardized record of the applicant’s qualifications, proposed employment, and biographical information.
• No recruitment, wage determination, or employer financial records are required.

While the form remains part of the filing, its role is purely administrative for NIW cases and does not trigger labor market testing or employer obligations.

8. Filing Forms and Government Records

Every EB-2 petition package always includes Form I-140, Immigrant Petition for Alien Worker, which is the core petition USCIS uses to determine whether the applicant qualifies for EB-2 classification. This form is mandatory for all EB-2 cases, whether PERM-based or National Interest Waiver (NIW).

In addition, all EB-2 filings require Form ETA-9089. For employer-sponsored EB-2A and EB-2B cases, this is the certified PERM Labor Certification obtained from the U.S. Department of Labor. For NIW cases, Form ETA-9089 is still included but only for administrative purposes; it is submitted directly to USCIS with the I-140 and does not require certification or recruitment.

However, it is important to clarify that not every EB-2 applicant needs to file Form I-485, Application to Adjust Status, as part of the initial petition. Form I-485 is only used when the applicant is physically present in the United States and eligible to apply for permanent residence without leaving the country. In many cases, Form I-485 may be filed concurrently with Form I-140 if visa numbers are immediately available under the Department of State’s Visa Bulletin. In other situations, Form I-485 is filed later, after the I-140 is approved and the priority date becomes current.

For applicants who are located outside of the United States, Form I-485 is not filed at all. Instead, once the I-140 is approved and a visa number becomes available, these applicants pursue consular processing abroad by filing Form DS-260, Immigrant Visa Application, through the National Visa Center (NVC) and their local U.S. embassy or consulate.

Finally, in both domestic and overseas filings, all required government filing fees, supporting documentation, translations, and civil documents must be included at the appropriate stage of processing.

In summary:

• Every EB-2 case requires Form I-140.
• Every EB-2 case includes ETA-9089 (certified for PERM, uncertified for NIW).
  Form I-485 is not always required. It applies only for applicants adjusting status inside the U.S.
• Form DS-260 applies for applicants outside the U.S. using consular processing.

9.  Legal Arguments and Petition Organization

Finally, a strong petition package includes a comprehensive legal brief that:

• Analyzes how the applicant meets the EB-2 requirements.
• Cites applicable statutes, regulations, and precedent decisions (such as Matter of Dhanasar for NIW cases).
• Explains how each document submitted supports the eligibility argument.
• Presents the entire case in a logical, easy-to-follow structure for the adjudicating officer.

The legal argument serves as a guide through the evidence, helping USCIS officers efficiently assess eligibility and reducing the risk of delays or Requests for Evidence.

EB-2 Visa Fees

While the EB-2 visa offers one of the most direct and stable pathways to permanent residency in the United States, applicants should be prepared for the financial costs associated with filing the required forms, processing applications, and gathering supporting documentation. The total cost of the EB-2 process varies depending on whether the case is employer-sponsored (PERM-based) or self-petitioned (National Interest Waiver), whether the applicant is filing inside or outside the United States, and whether optional services like premium processing are used.

Here is a breakdown of the key government filing fees involved in the EB-2 process:

1. Form I-140 Filing Fee (All EB-2 Petitions)

Form I-140, Immigrant Petition for Alien Worker, is required for every EB-2 petition, whether PERM-based or NIW. The standard USCIS filing fee for Form I-140 is $715 (effective as of the USCIS fee increase in 2024). This fee is paid when the petition is submitted to USCIS.

For self-petitioning NIW applicants, this I-140 fee is typically the main government filing fee due at the initial petition stage. Importantly, NIW applicants are generally not subject to the Asylum Program Fee that applies to some employer-sponsored filings.

2. Additional Costs: PERM Process and Recruitment Expenses

For employer-sponsored EB-2A and EB-2B petitions, the PERM labor certification stage adds significant costs that go beyond government filing fees. Unlike the self-petitioned National Interest Waiver (NIW), PERM-based petitions require U.S. employers to comply with strict Department of Labor (DOL) recruitment regulations, which often involve considerable financial and administrative investment.

A. Prevailing Wage Determination (PWD) Costs

While there is no government filing fee for requesting a prevailing wage determination, employers may incur costs related to:

• Retaining legal counsel or consultants to prepare the wage request.
• Conducting internal job analyses to ensure accurate job descriptions.
• Adjusting offered salaries to meet or exceed the DOL’s prevailing wage determination.

In some cases, the prevailing wage may be significantly higher than what the employer originally anticipated, requiring salary adjustments before the PERM can proceed.

B. Mandatory Recruitment Costs

The PERM process requires the employer to conduct a good-faith recruitment effort to test the U.S. labor market before filing ETA-9089. This includes multiple forms of advertising, each of which carries its own cost:

• Newspaper Advertisements: DOL regulations require two Sunday advertisements in a newspaper of general circulation in the area of intended employment. Depending on the publication, these ads can cost anywhere from $500 to $2,000 per ad, totaling between $1,000 and $4,000 or more.
• State Workforce Agency (SWA) Posting: This is free but involves administrative time to properly post and monitor the job listing.
  Internal Posting Notices: The employer must post a physical notice at the worksite for at least 10 consecutive business days.
• Additional Recruitment (for professional positions): The employer must also conduct at least three additional recruitment steps, which may include:
  • Job fairs
  • Employer website postings
  • Job search website postings
  • On-campus recruiting
  • Trade or professional organization advertisements
  • Private employment firms

The cost for these additional steps can vary widely depending on the employer’s choices, but total recruitment expenses often range from $2,000 to $5,000 or more for many professional positions.

Legal and Compliance Costs

Additionally, employers must maintain strict documentation throughout the recruitment process, including:

• Recruitment reports summarizing all recruitment efforts.
• Copies of all advertisements placed.
• Resumes received and reasons for rejecting U.S. applicants.
• Supporting evidence of business necessity (if required).

Failure to properly document recruitment may result in denial of the PERM application or exposure to audits and penalties. Importantly, DOL regulations prohibit employers from passing the PERM labor certification costs, including recruitment and legal fees, onto the foreign national beneficiary. These costs must be paid entirely by the sponsoring employer.

By contrast, once the PERM is certified and the case moves forward to the I-140 and I-485 stages, both the employer and employee may share or negotiate responsibility for additional legal fees and government filing costs depending on the employer’s policies and the nature of the employment agreement. Many employers engage immigration attorneys or PERM processing specialists to ensure full compliance with DOL regulations, minimize risk of audit, and correctly document recruitment efforts.

3. Form I-485 Adjustment of Status Fee (U.S.-Based Applicants Only)

Applicants who are physically present in the United States and eligible to adjust status will need to file Form I-485 after the I-140 is approved (or concurrently, if visa numbers are available). As of 2024, the filing fee for Form I-485 is $1,440 if you are above the age of 14 and $950 if the applicant is under 14 years of age and submitting Form I-485 concurrently with one of their parents. These fees include the biometrics fee.

The I-485 stage may also involve additional forms such as the Employment Authorization Document (EAD) and Advance Parole travel permit, which often have separate fees unless a fee waiver or bundle is applicable under current USCIS regulations.

4. DS-260 Immigrant Visa Application Fee (Consular Processing Only)

Applicants pursuing consular processing from abroad will file Form DS-260 instead of Form I-485. The DS-260 filing fee is currently $325, paid directly to the National Visa Center (NVC) at the time of immigrant visa processing. After the immigrant visa is issued and the applicant enters the United States, an additional USCIS Immigrant Fee of $220 is charged to produce and mail the green card.

5. USCIS Asylum Program Fee

In addition to the regular EB-2 filing fees, USCIS now requires certain Form I-140 petitioners to pay an additional Asylum Program Fee, which helps fund the agency’s overall asylum and humanitarian operations. This fee applies to most employment-based immigrant visa categories, including EB-2 petitions, but how much you owe depends on who is filing the petition.

Here’s how the Asylum Program Fee applies specifically to EB-2 cases:

• Regular Petitioners (Employer-Sponsored EB-2A/B): For most U.S. employers filing PERM-based EB-2A or EB-2B petitions, the Asylum Program Fee is $600 per petition. This fee is due in addition to the standard I-140 filing fee and must be paid at the time of filing.
• Small Employers: USCIS provides a reduced fee for small businesses. A “small employer” is defined as a U.S. employer that has 25 or fewer full-time employees. If the sponsoring employer qualifies as a small business, the Asylum Program Fee is reduced to $300 per petition.
• Nonprofit Petitioners: Nonprofit organizations that are exempt under Section 501(c)(3) of the Internal Revenue Code are fully exempt from the Asylum Program Fee. Qualifying nonprofit employers are not required to pay this additional fee when filing Form I-140 on behalf of a foreign national.
• Self-Petitioners (National Interest Waiver): If you are filing an EB-2 NIW petition as a self-petitioner, you are completely exempt from the Asylum Program Fee. Because there is no employer involved, NIW applicants filing Form I-140 on their own behalf do not need to pay this additional fee.

If you are paying USCIS filing fees by check or money order, the Asylum Program Fee must be submitted as a separate payment from the standard I-140 filing fee. This allows USCIS to properly allocate the fees and process the petition.

For petitioners filing online or using credit card payment (where available), the Asylum Program Fee will automatically be calculated and processed during electronic filing.

6. Premium Processing Fee (Optional, Available for EB-2)

USCIS offers premium processing for EB-2 petitions (both PERM-based and NIW), which guarantees that USCIS will take initial action on the petition within 45 business days after receiving Form I-907 and the premium processing fee. If USCIS issues a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) during this period, the 45-business-day clock is paused. Once the petitioner submits a complete response to the RFE or NOID, the premium processing clock resumes, and USCIS must take further action, which may be approval, denial, or another RFE, within the remaining business days of the original processing window.

The premium processing fee is currently $2,805. This fee is in addition to the standard I-140 filing fee and must be submitted with Form I-907 if the applicant chooses expedited processing. Premium processing is available for both PERM-based and NIW cases.

7. Other Legal, Document Preparation, and Translation Costs

In addition to government filing fees, most applicants will incur additional costs depending on the complexity of their case:

• Attorney’s fees for legal representation, strategy development, and petition preparation;
• Academic credential evaluations for foreign degrees;
• Translations for any non-English documents submitted as part of the petition;
• Expert opinion letters or third-party evaluations, particularly in exceptional ability or NIW cases;
  Certified copies of civil documents (birth certificates, marriage certificates, etc.).

These costs vary widely depending on the individual case, the applicant’s country of origin, and whether professional legal assistance is retained.

While the EB-2 process does require a financial commitment, careful preparation, strong legal arguments, and proper case strategy significantly increase the value of these investments by maximizing the likelihood of approval and minimizing costly delays.

EB-2 Visa Processing Times

While the EB-2 visa category offers a valuable path to permanent residency, applicants should carefully consider the expected processing times at each stage of the case. Processing times can vary significantly depending on whether the case is filed through the PERM-based EB-2A/B route or through the self-petitioned National Interest Waiver (EB-2C). Additional factors such as visa bulletin backlogs, USCIS workloads, premium processing, and the applicant’s country of birth may also affect the overall timeline.

Below is a breakdown of typical EB-2 processing times as of 2025.

PERM-Based EB-2A/B Processing Times

The PERM-based process typically involves three separate phases, each handled by a different government agency:

1. Prevailing Wage Determination (DOL)

The process begins with the employer requesting a prevailing wage determination (PWD) from the U.S. Department of Labor. This step generally takes about 6 to 8 months to receive a determination, though times may fluctuate based on DOL workload.

2. PERM Labor Certification (DOL)

Once the prevailing wage is issued and recruitment is completed, the employer files the PERM Labor Certification (Form ETA-9089). The DOL’s processing time for PERM certification typically takes an additional 6 to 10 months. Audits or supervised recruitment may extend this timeline further.

3. Form I-140 Immigrant Petition (USCIS)

After the PERM certification is approved, the employer submits Form I-140 to USCIS. Standard processing for I-140 petitions typically takes 8 to 10 months if filed under regular processing. However, employers may request premium processing, which guarantees initial action within 45 business days. If USCIS issues a Request for Evidence (RFE), the clock is paused until the petitioner submits a complete response, after which the clock resumes with the remaining business days.

4. Adjustment of Status (Form I-485) or Consular Processing (DS-260)

Once the I-140 is approved and a visa number becomes available under the Visa Bulletin, the applicant may proceed to apply for permanent residence. Adjustment of status filings (Form I-485) currently takes approximately 8 to 12 months on average. Consular processing timelines for DS-260 are similar but may vary based on consular workload and local embassy processing capacity.

National Interest Waiver (NIW - EB-2C) Processing Times

The NIW process skips the prevailing wage and PERM labor certification phases, significantly shortening the timeline.

1. Form I-140 (USCIS)

Under regular processing, USCIS typically adjudicates NIW-based I-140 petitions in 10 to 12 months. However, many NIW applicants choose to file with premium processing, which guarantees USCIS will take action within 45 business days. As with all premium processing requests, if USCIS issues an RFE or NOID, the 45-business-day clock pauses and resumes once a response is received.

2. Adjustment of Status (Form I-485) or Consular Processing (DS-260)

After the I-140 approval and visa number availability, the applicant proceeds to the green card stage. Processing times for Form I-485 and DS-260 are generally consistent with PERM-based cases, averaging 8 to 12 months.

The Role of the Visa Bulletin

Regardless of whether the petition is PERM-based or NIW, final processing depends on visa number availability as published monthly by the U.S. Department of State’s Visa Bulletin. Applicants born in countries with high demand, such as India and China, may experience longer wait times due to per-country annual visa caps. Applicants from most other countries often face minimal or no retrogression, allowing faster progression to green card approval.

Ready to Apply for Your EB-2 Visa or NIW?

Whether you are pursuing a PERM-based EB-2 petition with employer sponsorship or self-petitioning through the National Interest Waiver, success depends on precise eligibility analysis, strategic legal argumentation, and comprehensive documentation. Our experienced immigration attorneys are here to guide you through every stage of the process.

We will carefully review your qualifications, determine the most effective filing pathway, and craft a tailored legal strategy that aligns with your professional background and immigration goals. From drafting persuasive petition letters to assembling complete evidentiary packages, we ensure your case meets the highest standards of legal and procedural compliance.

With our support, you can avoid costly delays, respond effectively to any USCIS requests, and maximize your chances of approval. Let us help you navigate your journey to U.S. permanent residency with clarity and confidence.