USCIS Updates Policy on EB-2 National Interest Waiver Petitions

On January 15, 2025, the U.S. Citizenship and Immigration Services (USCIS) issued a policy guidance to clarify how USCIS evaluates eligibility for second preference employment-based category for national interest waiver (NIW) petitions.

Background

Second preference employment-based classification (EB-2) is available to members of the professions holding an advanced degree and to individuals of exceptional ability. Generally, an employer files the petition after receiving a labor certification from the Department of Labor (DOL). However, USCIS can waive the job offer requirement, and thus also waive the requirement of obtaining a labor certification if it is in the interest of the United States. Moreover, individuals seeking a NIW can file the petition on their own behalf.

It is important to note that a petitioner seeking an NIW must first be able to demonstrate that they qualify for the essential EB-2 classification as “either a member of the professions holding an advanced degree or an individual of exceptional ability in the sciences, arts, or business.”

General Updates

This new policy guidance adds clarification related to eligibility for a NIW, including more detail on the evidentiary standards for petitions. The update focuses on the following:

• The need to satisfy the primary EB-2 eligibility criteria
• Demonstrate a direct relationship between the person’s qualifications and the proposed endeavor
• Establish the national importance of the endeavor.

One major update is that USCIS emphasizes the need for the petitioner to establish the beneficiary’s qualification for the EB-2 classification by demonstrating that the beneficiary is “either a member of the profession holding an advanced degree or an individual of exceptional ability in the sciences, arts, or business.” This threshold must clearly be established for USCIS to proceed with other elements of the petition.

This guidance further clarifies that “the petition must clearly describe in a straightforward manner the person’s occupation and proposed endeavor.” The petitioner must submit a multitude of evidence that the occupation is one for which “a U.S. bachelor’s degree… is the minimum requirement for entry into the occupation.” Simply stating that the beneficiary has an advanced degree will be deemed insufficient. Establishing that the beneficiary has an advanced degree will not meet the evidentiary standard. As such, it is important to prove that the intended occupation for the beneficiary also requires at least a bachelor’s degree or its foreign equivalent.

USCIS clarifies that those beneficiaries who wish to qualify as a professional with an advanced degree on a bachelor’s degree with five years of progressive experience in the specialty “must obtain the requisite five years of progressive experience after completion of the bachelor's degree or its foreign equivalent.” Additionally, the petitioner must show that the experience gained is related to the bachelor's degree or foreign equivalent degree. By implementing this update in the guidance, USCIS clarifies the threshold of eligibility for an NIW petition as it related to the nature of the related experience.

Policy Updates to The Exceptional Ability Criteria

For an individual to qualify for EB-2 classification, they must demonstrate that they have expertise significantly above the ordinary in the sciences, arts, or business and must demonstrate their eligibility based on satisfying at least three of the six regulatory criteria. Individuals must also be able to demonstrate that their “area of exceptional ability” is directly related to their proposed endeavor. Satisfying the three criteria will not be the sole factor is establishing eligibility under the exceptional ability criteria. Rather, USCIS will apply a two-step analysis. First, USCIS will determine whether the beneficiary meets three out of the six criteria. Then, they will conduct a final merits determination where they will evaluate if the beneficiary has a level of expertise that is significantly above the ordinary.

Policy Updates to Three-Prongs

First Prong: The Proposed Endeavor has both Substantial Merit and National Importance

This update emphasizes the need that the petitioner must demonstrate that by waiving the job offer and labor certification requirements, it would greatly benefit the United States. They must provide substantive information that elaborate on the direct impact of the endeavor and how the endeavor would be furthered “through the course of the person’s duties at a particular employer or some other way.” General information about the endeavor’s importance or the commercial importance of an endeavor for sale or use by a company would not be enough to meet the national importance standard.

To meet the standard, it is important for the petitioner to connect the endeavor to broader national implications. This may include demonstrating that the potential impact of the endeavor which may also include demonstrating the potential significant economic impact. The analysis of the petition will evaluate whether the petitioner has provided sufficient evidence to demonstrate how the proposed endeavor aligns with the criteria of national importance.

Second Prong: The Person is Well Positioned to Advance the Proposed Endeavor

USCIS removed two items from the list of evidence to prove that the individual is well-positioned to advance the proposed endeavor: letters from experts in the individual’s field and a detailed business plan. USCIS did acknowledge the importance of letters from experts in the individual’s field if they are experts that have first-hand knowledge of the person’s achievements and can further explain how the beneficiary is well positioned to advance the endeavor. Business plans are also considered to be of use but should include and be supported by various other independent evidence.

Third Prong: It Would be Beneficial to the United States to Waive the Job Offer and Thus the Permanent Labor Certification Requirements

This section of the policy manual was amended to remove a reference to “U.S. competitiveness in STEM fields.”

Updates Related to Entrepreneurs

USCIS acknowledges that entrepreneur NIW petitions are unique and require different types of evidence and that many entrepreneurs often do not follow traditional career paths. Due to the nature of an entrepreneur’s career path, this policy guidance clarifies that “broad assertions regarding general benefits to the economy and potential to create jobs will not establish an entrepreneur’s qualification for a national interest waiver.”

Equally, evidence that proves the beneficiary has general work experience in a field of national importance will not suffice in establishing that the individual is well-positioned to advance an entrepreneurial endeavor of national importance. Petitions should contain specific details, such as “information about a person’s record of success and how those and other actions forecast the likelihood of continued success.” Entrepreneurs seeking a NIW need to provide unique evidence demonstrating their active role in a U.S. based entity, where their knowledge or experience significantly advance the proposed endeavor.

This updated policy guidance from USCIS provides clarification on the evaluation of EB-2 National Interest Waiver petitions. Individuals seeking an NIW should review this updated guidance to ensure their application effectively shows the benefit their work will bring to the United States. As this matter is subject to further updates and changes, we encourage readers to check our website regularly for updates on this and all matters related to immigration law.