Frequently Asked Questions for EB2 Visa and National Interest Waiver (EB2 NIW)

What does NIW stand for?

NIW stands for National Interest Waiver, which is a category within the U.S. green card application process, specifically under the EB-2 visa category. Generally, application of second preference of employment-based immigrant visa requires a specific job offer and labor certification process (PERM). However, a foreign national may seek a waiver of job offer or PERM process by establishing that his/her admission to permanent residence would be in the "national interest" of the United States.

Is NIW a green card?

Yes, the EB-2 NIW (National Interest Waiver) is a category within the U.S. green card application process. If your I-140 NIW petition is approved, it means you have met the eligibility requirements for the EB-2 visa category. However, you will still need to complete the subsequent step, such as filing an Adjustment of Status application (Form I-485) or Immigrant Visa Processing, to obtain your green card.

What are the differences between Regular EB2 visa and EB2 NIW (National Interest Waiver) petitions?

For an ordinary EB2 case, a U.S. employer needs to act as the case petitioner, and the petitioner (employer) needs to obtain a labor certificate before filing Form I-140 for the foreign national. The foreign national is called the "beneficiary". The petition needs to establish the qualifications of the foreign national (an individual with advanced degree or exceptional ability). For an EB2 NIW (National Interest Waiver) case, the foreign national can self-petition the case.

The petition not only needs to establish the foreign national's qualifications under EB2, but also demonstrate that the qualifications satisfy the National Interest Waiver requirements (three-prong test in the Matter of Dhanasar decision). Generally, it is more difficult to obtain immigration benefit under EB2 NIW (National Interest Waiver) than the ordinary EB2 because of the additional requirements for "national interest". However, we at North America Immigration Law Group have successfully helped more than 10,000 clients obtain EB2 NIW (National Interest Waiver) approval, with the overall approval rate close to 100%.

Who can file a petition under EB2 NIW (National Interest Waiver)?

A foreign national may file his/her own EB2 NIW (National Interest Waiver) petition or an employer can petition for the foreign national.

What does EB2 NIW (National Interest Waiver) waive?

The National Interest Waiver waives the labor certification process and the necessity of having an offer of employment.

Who are eligible for NIW?

To be qualified for EB2 NIW (National Interest Waiver), one must first meet the requirements of the EB2 category (Second Preference Employment-Based Immigration), which can be satisfied in one of two ways:

(1) EB2 “Advanced Degree” — EB2 Advanced Degree can be satisfied by having

(a) any advanced degree beyond a baccalaureate degree (including a U.S. or foreign Ph.D., a U.S. or foreign master’s, or MD/MBBS) or

(b) by demonstrating that you have the “equivalent” to an advanced degree (namely, a baccalaureate degree plus five years of progressive work experience in your field of expertise).

Although your case under EB2 Advanced Degree would generally be somewhat stronger with a Ph.D., a Ph.D. is not a strict requirement to satisfy EB2 Advanced Degree.

(2) EB2 “Exceptional Ability” — If you do not meet either of the above two requirements, you can still satisfy the requirements of EB2 by demonstrating that you satisfy EB2 Exceptional Ability. To do so, you would have to provide evidence that you meet at least three of the criteria listed below:

• Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
• Letters documenting at least 10 years of full-time experience in your occupation
• A license to practice your profession or certification for your profession or occupation
• Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
• Membership in a professional association(s)
• Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
• Other comparable evidence of eligibility is also acceptable.

What is an advanced degree for the purpose of EB-2 visa?

Advanced degree for the purpose of EB-2 visa is a United States advanced degree (degrees above a bachelors) or a foreign equivalent degree.

What if one only has a Bachelor’s degree, and not a Master's or above?

If the foreign national has only received a United States baccalaureate degree or a foreign equivalent degree, the experience of at least five years of progressive, post-baccalaureate experience in the specialty plus the bachelor's degree will be sufficient for the advanced degree requirement. Otherwise, the foreign national needs to show "exceptional ability."

What is “exceptional ability“ for the purpose of EB2 petition?

The other group in the second employment-based preference includes foreign nationals with exceptional ability in the sciences, arts, or business. Athletes may be considered aliens of exceptional abilities in the arts for purposes of qualifying in the second employment-based preference.

Who has “exceptional ability“? What document qualifies then as evidence of “exceptional ability“?

The law does not specify the definition of “exception ability“. However, the law does indicate that the foreign national must have a degree of expertise above that ordinarily encountered in his or her field.

In order to establish exceptional ability in the sciences, arts, or business, a petitioner must document at least three of the following:

1. An official academic record showing that the foreign person 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. Evidence in the form of letters from current or former employers showing that the foreign person has at least 10 years of full-time experience in the occupation.
3. A license to practice the profession or certification for a particular profession or occupation.
4. Evidence that the foreign person has commanded a salary or other remuneration for services that demonstrate exceptional ability.
5. Evidence of membership in a professional association or
6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities or professional or business organizations.

May other evidence be considered in addition to the listed six criteria of “exceptional ability“?

Yes. The USCIS has indicated that it will consider comparable evidence that is appropriate to the foreign national's application in the event the foreign national cannot provide the type of evidence listed above.

May a foreign medical degree qualify as the equivalent of a U.S. M.D. degree for the purpose of an EB2 petition?

A foreign medical degree may qualify as the equivalent of a U.S. M.D. degree if, at the time of the filing of the labor certification application, several conditions are met. The foreign national must establish that he or she:

1. has been awarded a foreign medical degree from a medical school that requires a foreign beneficiary to obtain a bachelor's degree equivalent to a U.S. bachelor's degree as a requirement for admission,
2. has been awarded a foreign medical degree and a foreign education credential evaluation is provided that describes how the foreign medical degree is equivalent to a medical degree obtained from an accredited medical school in the United States, or
3. has been awarded a foreign medical degree and has passed the National Board of Medical Examiners Examination (NBMEE) or an equivalent examination, such as the U.S. Medical Licensing Examination (USMLE), Steps 1, 2, and 3.

Who qualifies under EB2 NIW (National Interest Waiver)?

1. A foreign national who is qualified under EB2 visa and
2. A foreign national who passes the three-prong test in Matter of Dhanasar decision:
   1. proposed endeavor is of substantial merit and national importance
   2. well positioned to advanced the proposed endeavor
   3. significant benefit for "national interest"

For more information regarding EB2 NIW (National Interest Waiver) qualifications, please see our article here.

What form does the EB2 NIW (National Interest Waiver) petition file?

EB2 NIW petition includes the filing of Form I-140.

Is a labor certification required before the filing of I-140 of EB2 NIW (National Interest Waiver)?

No. Labor certification is not required before the I-140 filing for EB2 NIW. EB2 NIW waives the labor certification.

Is a job offer required for EB2 NIW (National Interest Waiver)?

No. No job offer is required.

What are the major advantages of applying for EB2 NIW (National Interest Waiver)?

1. No labor certification is required.
2. No job offer or permanent job position is required.
3. Self-petition is allowed.
4. Most visas are current except for people born in China and India.

Is EB-2 NIW difficult?

A foreign national seeking to meet the EB2 NIW standard must show that his/her qualifications are significant enough to prove “prospective national benefit“. The burden will rest with the foreign national to establish that exemption from or waiver of a job offer will be in the national interest. Each case will be adjudicated on its own merits. If a beneficiary is qualified, the chance of success depends largely on the way the case is presented. If the evidence is relevant and well presented, and the argument is made persuasively, there is a good chance of case approval. But each case approval is up to the immigration officer's discretion and not all officers adjudicate cases in the same way.

What is the recent EB2 NIW approval Rate?

According to the official statistics released by USCIS, USCIS approved 11,477 NIW petitions and denied 1,448 NIW petitions during the first quarter to the third quarter of Fiscal Year 2022. As such, the overall NIW approval rate at USCIS is around 88.8%.

North America Immigration Law Group has maintained a much higher approval rate for NIW petitions. From 2016 till now, we have obtained over 27,494 NIW approval, with the overall approval rate close to 100%.

What standard does the USCIS take to determine a EB2 NIW (National Interest Waiver) case?

The decision Matter of Dhanasar (released on 12/27/2016) established new standards for obtaining EB2 NIW petitions that the USCIS adopted. The AAO (Administrative Appeal Office) held that three factors must be considered when evaluating a request for an EB2 NIW:

1. Foreign national's proposed endeavor is of substantial merit and national importance,
2. Foreign national is well positioned to advance the proposed work, and
3. On balance it would be beneficial to waive the job requirement for the foreign national

What are the requirements of “substantial merit“ and "national importance" under the first prong of Matter of Dhanasar? What evidence should be submitted to meet the requirements?

Substantial Merit:

In the precedent case Matter of Dhanasar, the AAO stated that endeavor's merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. Evidence to establish that the beneficiary's proposed endeavor has substantial merit consists of, but is not limited to, the following:

A. A detailed description of the proposed endeavor and why it is of substantial merit; and

B. Documentary evidence that supports the petitioner's statements and establishes the endeavor's merit.

National Importance:

In determining whether the proposed endeavor has national importance, the immigration officers consider its potential prospective impact. Evidence to establish that the beneficiary's proposed endeavor has national importance consists of, but is not limited to, the following:

A. A detailed description of the proposed endeavor and why it is of of national importance,

B. Documentary evidence that supports the petitioner's statements and establishes the endeavor's national importance. Such evidence must demonstrate the endeavor's prospective impact, and may consist of, but is not limited to, evidence that shows the proposed endeavor:

• Has National or even global implications within a particular field;
• Has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area;
• Will broadly enhance societal welfare or cultural or artistic enrichment; and
• Impacts a matter that a government entity has described as having national importance or is the subject of national initiatives.

What should a foreign national provide to demonstrate that he/she is “well positioned to advance the proposed endeavor” under the Matter of Dhanasar decision?

A EB2 NIW petition needs to establish that the foreign national is well positioned to advance the proposed endeavor- that he/she has strong standing in his/her field and can be reasonably expected to continue their work successfully in the U.S. Examples of evidence can be detailed expert letters that demonstrate the interest of the U.S government in the petitioner’s research, documentation that the foreign national played a significant role in projects funded by governmental grants, and evidence of the foreign national’s education background, skills, knowledge, expertise, and other notable achievements in his or her field including notable memberships or media reports.

What factors does the USCIS consider to assess if “it would be beneficial to the United States to waive the job offer and labor certification requirements” for the foreign national under the Matter of Dhanasar decision?

For this requirement, USCIS may evaluate whether the projected benefits of a foreign national to national interest outweighs the necessity of a labor market test of seeking equivalently qualified U.S. workers.

A variety of evidence should be presented to demonstrate how the foreign national qualifies for a National Interest Waiver. It is not sufficient, therefore, to simply list the foreign national's achievements. A holistic approach must be taken to ensure that all together, the petition, letters of recommendation, and supporting evidence will prove that the foreign national is qualified for a National Interest Waiver.

What supporting evidence will best show that the foreign national will significantly contribute to the national interest?

Below is a list of evidence commonly included with our EB2 NIW (National Interest Waiver) petitions to demonstrate this aspect, as well as explanations for how each type of evidence can satisfy the requirements for EB2 NIW (National Interest Waiver).

1. Publications & Citation Records (including journal articles, book chapters, and books):
   A complete publication record should be included with the petition in order to demonstrate the alien's past record of scientific achievement. Publication alone, however, will not demonstrate the alien's influence in the field. The publication record should be accompanied with a citation record in order to demonstrate the influence of the alien's work on the field, and show that the work is being utilized by other researchers in the field. Additionally, journal impact factors and average citation records for the field can be used to show that the alien has a degree of influence above that of the average researcher in the field. It should be noted that there is no "magic number" of citations that will guarantee EB2 NIW (National Interest Waiver) approval, and there are many strategies that can be used to offset a low citation record.
2. Letters of Recommendation
   Letters of recommendation are a crucial aspect of the EB2 NIW (National Interest Waiver) petition. Independent letters of recommendation (from those who have never worked or studied with you, collaborated with you, or advised your work), will carry much more weight with the USCIS than letters from dependent recommenders, and this should be taken into consideration when selecting recommenders. Letters of recommendation should discuss your research contributions and their significance in layman's terms, and also comment directly on the benefit of your work to the United States. Letters of recommendation are also a great opportunity to demonstrate the implementation of one's work. A letter of recommendation from someone who has utilized your work, and can explain how they have done so in the letter, is a great way to strengthen your case. As part of our service, we will draft all of the recommendation letters for you. We will advise you closely on appropriate recommender selection, and how many letters should be drafted for your case. We set out a clear strategy when drafting the recommendation letters to ensure that the letters contain all of the necessary statements to substantiate the claims we have made in the petition. Lastly, we never rely on templates to draft the letters, and instead tailor each letter to your individual needs and unique case strategy.
3. Government Funding/Grants
   Funding from reputable institutions or government agencies such as US Military, NIH, NASA, etc are strong evidence in showing the national importance of the foreign national's work. It is essential to demonstrate the foreign national's high level of involvement in the application for the funding and his/her important role in the research related to the funding after it was granted.
4. Membership
   If the memberships are in the foreign national's field of expertise and require outstanding achievements as the selective criteria, the memberships can improve the foreign national's overall credentials.
5. Awards
   For awards to strengthen the EB2 NIW petition, ideally they need to be given specifically to the foreign national and nationally/internationally recognized. Awards open to individuals at a particular institution, city, or state/ region/ province are not be as influential. For instance, an award given by the American Chemical Society would likely be nationally recognized because it is the largest professional organization for chemists in the U.S.
6. Published Materials About the Foreign National
   The benefit of one's work to the U.S. can be shown by media coverage. If the articles or published material used as evidence focused on the foreign national and/or the work which he/she has performed in the field of endeavor, and the media enjoys national or international recognition, this will be helpful for the EB2 NIW petition
7. Patents, Contracts, Licenses and Technology Transfers
   A complete patent record, accompanied with citation or commercialization evidence is significantly helpful for demonstrating the utility of the foreign national's work as being adopted by the industry. Other similar evidence including contracts, licenses and technology transfers are also demonstrative of the implementation of the foreign national's work.
8. Evidence of Others Relying on the Foreign National's Work
   If the foreign national's work or assistance was requested by researchers from outside institutions, this indicates the impact and significance of the foreign national's endeavor. Documentation such as email correspondence and acknowledgement in major trade publications or major media are good evidence.

How many publications and citations are sufficient to meet EB2 NIW (National Interest Waiver) requirements?

There is no specific minimum publication or citation requirement; rather, it is determined by USCIS on a case-by-case basis.

Can I file under the category of EB2 NIW (National Interest Waiver) and another category simultaneously?

Yes. But you have to file a separate Form I-140 petition, with the required separate filing fee and supporting documentation for each requested visa category. Do not check multiple categories on one I-140 Form.

How can an EB2 NIW (National Interest Waiver) petition be filed?

An I-140 Form, together with supporting evidence is mailed to the appropriate service center.

Does priority date matter in a EB-2 NIW (National Interest Waiver)?

Priority date mostly matters for people from China and India because priority date is not current for people born in these two countries. The retrogression can be for several years. Usually, the priority date for foreign nationals born in the rest of the countries is current under EB-2 visa. However, according to the Department of State (DOS), the priority date may not be current for the months close to the last month of the fiscal year (October).

How do I know if I am qualified under EB2 NIW (National Interest Waiver) category?

This question can be easily answered by sending our attorneys your resume. Send us your resume to our attorney today at law@wegreened.com.

Can an EB2 NIW (National Interest Waiver) be withdrawn?

Yes, the petitioner or the Form G-28 representative may send a letter requesting to withdraw the I-140 petition to USCIS.

If my EB2 NIW (National Interest Waiver) petition gets denied, how long do I have to wait to file under EB2 NIW or other categories again?

The law does not restrict the time you can file your EB2 NIW petition after the denial of your previous filing. A previously denied petition does not bar you from submitting another petition subsequently, regardless which classification is concerned. However, unless your circumstances have improved, it is not advisable to simply submit a similar petition again.

How should I organize the evidence with the petition?

Follow the tips below for how to organize your evidence:

1. Provide all required documentation and evidence with the petition when filed. An I-140 petition may be denied without issuing a request for evidence in the instances where the required evidence described in the instructions and regulations are not initially provided.
2. If providing photocopies of documents, provide clear legible copies.
3. All foreign language documents must be submitted with a corresponding English translation. The English translation must be certified by a translator who is competent to translate and must verify in writing that “the translation is true and accurate to the best of the translator's abilities“. It is helpful if the English translation is stapled to the foreign language document.
4. If documenting the foreign national's publications or citations of the foreign national's work, highlight the foreign national’s name in the relevant articles. It is not necessary to send the full copy of a dissertation, thesis, or research paper written by the foreign national, or one in which the foreign national's work has been cited. Include the title page and the portion(s) that cite the foreign national's work and the “works cited“ or bibliography.
5. Tab and label the evidentiary exhibits at the bottom of the first page of each exhibit, and provide a list of the evidentiary exhibits and the eligibility criteria that each exhibit is submitted to establish for petitions supported by a substantial amount of documentation. An exhibit that is being provided to meet multiple eligibility criteria should be so identified in the exhibit list.

What is a letter of recommendation for EB2 NIW (National Interest Waiver) green card?

A letter of recommendation is also called reference letter, and it is a letter written by an expert in the foreign national's field or some otherwise authoritative individual in an allied or related field. Recommendation letters are essential in petition for employment-based immigration benefits. Given that adjudicating officers are rarely experts in your field, one way for them to determine whether a foreign national qualifies for the standard set in the Matter of Dhanasar decision is by looking at objective evidence submitted. A recommendation letter is among the most important of them.

Whom should I contact to obtain letters of recommendation for my EB2 NIW (National Interest Waiver) petition?

A foreign national should obtain strong letters from both the foreign national's “inner circle“ and “outer circle“ of peers. The foreign national's inner circle includes those he or she has directly worked with either in academia or in business. While these letters are often the most glowing, they can carry less weight as they are possibly biased.

What information should be included in the recommendation letters for an EB2 NIW (National Interest Waiver) case?

These are things that should be included in a recommendation letter:

1. Qualifications of the recommender: A recommendation letter needs to include the description of the recommender. If the recommender comments on the foreign national's achievements or research, a statement should be included in the support letter that establishes the qualifications of these individuals to judge the foreign national's work.
2. Helpful testimonials from experts: Expert testimonials of your accomplishments are crucial to your petition. However, keep in mind that expert testimonials should bolster the argument that you meet the standard set by law.
3. Substantive information: A good recommendation letter should point out the high level of unique expertise the foreign national possesses. If it is a recommendation letter from an employer or professor of the foreign national, it should specify the work the foreign national is responsible for and the requirements of the job. Although a job offer is not required for EB2 NIW petitions, a recommendation letter from an employer can cite to such a position to establish that very few individuals can fill the offered position (i.e., only top individuals in the field or those with exceptional ability can perform the duties required for the position) and the foreign national is one of these few individuals. In addition, recommendation letters that briefly discuss the foreign national's activities and described him or her as a knowledgeable individual, but lack specific information regarding how the foreign national's endeavors had significantly contributed to the United States’ interest are insufficient.

How many recommendation letters are needed for an EB2 NIW (National Interest Waiver) case?

There is no specific number of letters set forth by the USCIS. It is generally suggested to include four to six recommendation letters in an EB2 NIW (National Interest Waiver) case.

What assistance does your firm provide concerning drafting recommendation letters for my EB2 NIW (National Interest Waiver) case?

Letters of recommendation are hard to draft, yet good letters of recommendation will substantially boost your chance of successful petition. After you retain us, our firm will help you obtain good recommendation letters step-by-step:

1. We will provide detailed information concerning recommendation letters and walk you through the purpose, format and content of recommendation letters
2. We will discuss with you about potential candidates to write you recommendation letters.
3. You provide us detailed information pertaining to the authority and expertise of the recommenders, your connections, the relationships between your research and theirs, etc.
4. After receiving the information you provide, we will draft recommendation letters for you.
5. You send the recommendation letter drafts to recommenders for them to review and sign.
6. We will review those substantially changed recommendation letters to see if it is necessary to ask the recommender to sign another updated version.

What if I change jobs while my EB2 NIW (National Interest Waiver) petition is pending?

If you petition for yourself, changing employers should not affect the status of your case, and your petition will remain active. However, your new position should continue to satisfy the requirements for the EB2 NIW category or your petition may be denied after RFE (Request for Evidence). After you start to work with us, you should discuss with our attorneys before you change jobs so that we can determine if the new position still meets the EB2 NIW requirements.

May a Ph.D. student apply for an EB2 NIW (National Interest Waiver) green card? What is the success rate?

Yes. Our firm has successfully petitioned for many Ph.D. students to obtain Green Cards in the EB2 NIW category. After the Dhanasar decision, the education background is a factor the officer considers when assessing whether an applicant is "well-positioned to advance the proposed endeavor". With the well-presented evidence and personalized petitioning strategies, we were able to successfully argue our clients’ work is important to the national interest. In the past four years, we have successfully petitioned more than 10,000 EB2 NIW cases and about 30% of these clients were still in PhD program when we filed their cases. The approval rate for these cases remained high.

You can visit our blog for success stories for applicants who were still Ph.D. students at the time of filing.

https://www.wegreened.com/blog/advanced-search/

I am outside the U.S., can I apply for the EB2 NIW (National Interest Waiver) category? What is the success rate?

Yes. Our firm has successfully petitioned for many clients who were outside the U.S. to obtain Green Cards in the EB2 NIW category. Although the adjudicating officers primarily focus on the foreign national's credentials when adjudicating an EB2 NIW petition, there are specific requirements that foreign nationals who are still outside the U.S. need to satisfy for a successful petition.

For more information, please see our article at:

https://www.wegreened.com/How-Can-I-get-a-Green-Card-Outside-the-US

May a F-1 student visa or J-1 visiting scholar holder petition for EB2 NIW (National Interest Waiver) category? Do I have to wait to apply for the Green Card after my graduation and changing the visa to H-1B?

The F-1 or J-1 visa is a non-immigrant visa that does not allow immigrant intent, but it does not mean that a F-1 or J-1 visa holder is not allowed to apply for the Green Card. Although an F-1 or J-1 visa holder cannot have immigrant intent when applying for the nonimmigrant visa, he/she may change his/her intent after receiving the nonimmigrant visa.

It is not true that someone must change his/her visa type to be H1B, which allows immigrant intent, before filing a Green Card application.

What is the real difference between EB2 NIW (National Interest Waiver) and EB1-A (alien of extraordinary ability) applications? Is it possible to file two petitions such as an EB2 NIW and EB1-A at the same time?

The requirements in EB2 NIW and EB1-A are different, and the application preparation is significantly different between these two classifications. Successful EB2 NIW cases are not limited to those foreign nationals who have risen to the very top of their field. Presenting materials in support of the petition that frame the case in the most favorable light will aid its passage. For example, it is important that the petitioner construe the foreign national's field as narrowly as is possible while maintaining credibility. By narrowing the frame of reference, the foreign national will be compared to a much smaller set of U.S. peers. However, it should be noted that the AAO might suspect petition that construes the foreign national's field too narrowly. The definition of the foreign national's expertise field should be supported by documentation. But once your I-140 is approved, there is no major difference between these two classifications for the I-485 application later. It is possible to file two petitions such as an EB2 NIW and a EB1-A at the same time, which many of our clients did. There is nothing stated in the law that prohibits multiple filings and the cases should be adjudicated independently.

If I have not published articles in journals within my field, may I still apply for anEB2 NIW (National Interest Waiver) category?

Yes, there is no specific requirement that you need to have published articles in order to apply or obtain approval of an EB2 NIW petition, although in many instances publications would help improve chances of approval because they help to establish the original contribution and authorship. One can still support the petition by providing evidence that satisfies the prongs listed by the law. For example, if an entrepreneur can establish that his/her proposed endeavor has a potential to create a significant impact on U.S. economy, such as by developing top-notch technology, the foreign national may still qualify under EB2-NIW.

Can I apply for EB2 NIW (National Interest Waiver) category from outside of the U.S.?

Yes. Please click here for more information regarding applying for National Interest Waiver (NIW) from outside of the U.S.

I am a J-1 holder subjected to the two-year foreign country residency requirement. May I apply under EB2 NIW (National Interest Waiver) category now, and get my J-1 waiver later?

Yes, you can apply for the EB2 NIW now, and get your J-1 waiver later. The 212 (e) restriction does not affect I-140 EB2 NIW but only affects the process of I-485 (in the U.S.) or Immigrant Visa Processing (outside the U.S.).

You do not have to have a J-1 waiver before submitting an I-140 petition. The two-year foreign residency requirement does not allow you to adjust the status from J-1 to permanent residency, but it does not prevent you from submitting I-140 petition. Also, you may prepare for I-140 and J-1 waiver concurrently.