Overview: The U.S. Citizenship and Immigration Services (USCIS) has updated its policy for Employment-Based National Interest Waivers (NIWs), which fall under the EB-2 visa category. These changes, effective January 15, 2025, clarify the requirements for applicants. USCIS is tightening its standards and sending an indication that NIW petitions must be thoroughly documented.
Key Changes in the Policy Update
- Eligibility for EB-2 Classification:
- Advanced Degree or Exceptional Ability: To qualify for EB-2, applicants must demonstrate they hold an advanced degree (master’s or higher) or possess exceptional ability in a field such as sciences, arts, or business.
- Job Offer & Labor Certification: Normally, applicants must have a job offer from a U.S. employer and obtain labor certification from the U.S. Department of Labor (DOL). However, for a National Interest Waiver, USCIS can waive these requirements if the applicant’s work is deemed to serve the national interest.
- Updated NIW Eligibility Criteria:
- The updated guidance emphasizes that applicants must meet the basic EB-2 eligibility criteria first. If they fail to do so, USCIS will issue a Request for Evidence (RFE) or even deny the application without reviewing the national interest aspects.
- Applicants must clearly describe their occupation and the proposed endeavor in a straightforward way. You must show that their proposed job or endeavor requires at least a bachelor’s degree (or its foreign equivalent) to enter the field.
- For those using progressive work experience (bachelor’s degree + 5 years of experience) to qualify, USCIS clarifies that the work experience must relate directly to the degree and the proposed endeavor. For example, the 5 years of experience must occur after the degree and must match the applicant’s intended work.
- Exceptional Ability in the Sciences, Arts, or Business:
- To qualify for an NIW based on exceptional ability, applicants must meet at least three of the six criteria outlined in the regulations (like education, professional accomplishments, etc.).
- Meeting three criteria isn’t automatically enough. USCIS will apply a two-step analysis:
- First, determine if the applicant meets at least three of the six criteria.
- Second, they will review whether the applicant has a level of expertise that is significantly above what is typically found in their field, based on the “totality of the evidence.” The use of the wording “significantly above” here will allow USCIS more discretion in their decisions.
- The Dhanasar Three-Prong Test: The policy update focuses on the three-prong test established in the Dhanasar decision (AAO 2016) for evaluating NIW petitions:
- First Prong: The proposed endeavor must have substantial merit and national importance. This means applicants must show that their work will have a meaningful impact on the U.S. on a large scale (economic, social, scientific, etc.). It’s not enough to say that the work benefits a particular employer or industry; the broader, national implications of the work must be clear!
- Second Prong: The applicant must be well-positioned to advance the proposed endeavor. USCIS has removed two types of evidence previously allowed under this prong:
- Letters from experts in the field: However, letters from experts may still be useful if they come from individuals who have direct knowledge of the applicant’s achievements and can explain how the applicant is positioned to succeed in their field.
- Detailed business plans- Similarly, while business plans are still considered useful, they must be backed by independent evidence (e.g., financial records, market research)
- Third Prong: It must be beneficial to the U.S. to waive the labor certification and job offer requirements. This prong examines whether the applicant’s work in the national interest justifies waiving the usual job offer and labor certification process.
- Entrepreneurs and NIW Petitions:
- Unique Evidence for Entrepreneurs: Entrepreneurial applicants face unique challenges. USCIS clarifies that simply stating general benefits to the economy or claiming potential job creation isn’t enough to qualify for an NIW. Applicants must provide detailed, specific evidence demonstrating that their entrepreneurial endeavor is nationally significant.
- For example, they must show how their business or innovation will have a real impact. This impact can be shown by job creation, economic growth, advancing U.S. interests in a key industry, etc.
- Supporting Evidence for Entrepreneurs: Entrepreneurs need to provide detailed evidence, such as:
- A strong track record of success in their field
- Business plans showing growth potential, including revenue forecasts and job creation.
- Metrics that forecast the business’s contribution to the U.S. economy.
- Evidence of investment in the business or commitments to invest in the U.S. economy
- Evidence that the entrepreneur plays a central, active role in the company
These policy updates show that it’s no longer enough to claim that an applicant’s work is of national importance without backing it up with solid, specific evidence. For entrepreneurs, it’s absolutely critical to show not just that the business will benefit the U.S. but that the applicant will play an active role in ensuring its success. Reach out to your team at Naya for more information on the NIW process.
Disclaimer
The information on this website is for general information purposes only and does not constitute solicitation or provision of legal advice. Viewing information on this website and/or contacting Naya Law Group, PC does not establish an attorney-client relationship. This blog should not be used as a substitute for obtaining legal advice for any individual case or situation from an attorney licensed or authorized to practice in your jurisdiction.