The new USCIS policy guidance clarifies key aspects of eligibility and evaluation criteria for EB-2 National Interest Waiver (NIW) petitions.
These are the main developments as of this January, 15, 2025 update.
Clarification on EB-2 NIW Eligibility Requirements
Before granting an NIW, USCIS requires petitioners to qualify under the EB-2 classification, which includes two possible pathways:
•Advanced Degree Professionals: The petitioner must have a U.S. advanced degree (or its foreign equivalent), or a U.S. bachelor’s degree plus at least 5 years of post-bachelor’s progressive experience in the specialty.
•Exceptional Ability Individuals: The petitioner must demonstrate exceptional ability in the sciences, arts, or business. The new guidance emphasizes that this exceptional ability must directly relate to the proposed endeavor for which the NIW is requested.
Clarifications on Advanced Degree Professionals & NIW
•The new guidance specifies that USCIS will assess whether the occupation related to the NIW request qualifies as a “profession.”
•It also states that the required five years of post-bachelor’s progressive work experience must be in the same specialty as the proposed NIW endeavor.
📌 Why it matters: This clarification helps ensure that applicants meet the fundamental EB-2 qualification before USCIS considers granting a waiver of the job offer and labor certification.
Relationship Between Exceptional Ability and the Proposed Endeavor
•For those applying under the exceptional ability category, the new guidance specifies that the claimed exceptional ability must be relevant to the proposed endeavor.
•USCIS will assess this on a case-by-case basis, looking at overlapping skillsets, knowledge, or expertise between the individual’s abilities and the endeavor.
📌 Why it matters: This guidance makes it clear that an individual cannot simply qualify as “exceptionally talented” in any field—they must show that their ability directly contributes to the nationally important endeavor.
Guidance on National Importance of the Proposed Endeavor
The policy update provides further explanation on how USCIS evaluates whether an endeavor meets the national importance standard. This includes:
•The potential impact of the endeavor on a broader scale (e.g., economic benefits, scientific advancements, societal improvements).
•The geographic scope of the endeavor (e.g., whether it benefits a region or the entire country).
•How the petitioner’s work aligns with U.S. interests in key fields, such as STEM and entrepreneurship.
📌 Why it matters: This update gives applicants clearer guidelines on how to demonstrate national importance, particularly in cases where their contributions may not have obvious large-scale implications.
Evaluation of Evidence: Letters of Support & Business Plans
•USCIS clarifies how it assesses letters of recommendation, expert testimonials, and business plans as part of the NIW petition.
•The agency will analyze whether these documents provide specific, credible evidence that the petitioner is well-positioned to advance the proposed endeavor.
•Business plans should contain concrete details on how the endeavor will be implemented and scaled to achieve national importance.
📌 Why it matters: Petitioners must ensure their supporting evidence is detailed, well-documented, and tailored to the proposed endeavor rather than generic statements.
Builds on Previous STEM and Entrepreneurial Policy Updates
•This new guidance expands on previous Policy Manual updates that provided special considerations for STEM degree holders and entrepreneurs seeking an NIW.
•The update reinforces STEM professionals’ contributions to innovation, research, and national competitiveness.
•Entrepreneurs must still demonstrate how their work has broader economic or technological significance beyond personal business success.
📌 Why it matters: USCIS continues to prioritize STEM fields and entrepreneurs, making NIW a viable route for foreign professionals with high-value contributions.
Effective Immediately & Supersedes Prior Guidance
•The guidance, included in Volume 6, Part F, Chapter 5 of the USCIS Policy Manual, is effective immediately for all pending and future EB-2 NIW petitions.
•It overrides any conflicting past policies.
📌 Why it matters: Petitioners must ensure their applications align with this new guidance to avoid denials or RFEs (Requests for Evidence).
Final Thoughts
This USCIS policy update provides greater clarity on how EB-2 NIW petitions are evaluated, particularly in the areas of:
•Professional qualifications for advanced degree holders.
•The direct relevance of exceptional ability to the proposed endeavor.
•What constitutes national importance.
•The credibility of supporting evidence.
💡 For applicants, this means:
•Ensuring their qualifications and work experience align with their NIW endeavor.
•Strengthening evidence of how their work benefits the U.S. on a national level.
•Submitting well-documented letters of support and business plans that clearly outline their contributions.