The U.S. Citizenship and Immigration Services (USCIS) has announced a significant update to its policy guidance concerning the evaluation of EB-2 National Interest Waiver (NIW) petitions. The new guidance, effective immediately, aims to provide clearer criteria for determining eligibility under this employment-based second preference classification, streamlining the process for applicants seeking an NIW.
Understanding the EB-2 NIW Classification
The EB-2 classification is designed for individuals who are either members of professions requiring an advanced degree or possess exceptional abilities in sciences, arts, or business. Typically, an employer must file an EB-2 petition using Form I-140, accompanied by a labor certification from the Department of Labor. However, the NIW option allows USCIS to waive the job offer and labor certification requirements if the applicant can demonstrate that their work is in the national interest of the United States.
Importantly, individuals seeking an NIW can self-petition, eliminating the need for employer sponsorship. To qualify for an NIW, the petitioner must first establish eligibility for the EB-2 classification and then demonstrate that waiving the job offer requirement aligns with U.S. national interests.
Key Highlights of the Updated Guidance
The updated policy introduces refined standards for evaluating both advanced degree professionals and individuals of exceptional ability:
- For Advanced Degree Professionals: The guidance outlines how USCIS determines whether the petitioner’s proposed occupation qualifies as a “profession.” It also clarifies the role of five years of post-bachelor’s experience in assessing eligibility for this classification.
- For Persons with Exceptional Ability: USCIS now evaluates whether the petitioner’s exceptional ability directly relates to their proposed endeavor. This assessment is done on a case-by-case basis, with an emphasis on shared skill sets, knowledge, and expertise that align with the proposed work.
- National Importance and Evidence Review: USCIS has provided clearer explanations for assessing the national importance of a petitioner’s proposed endeavor. The guidance specifies how supporting evidence, such as letters of support, business plans, and other documentation, will be evaluated to determine whether the applicant is well-positioned to advance their initiative.
These updates build on a previous policy update focused on individuals with advanced degrees in STEM fields and entrepreneurs, further enhancing clarity and accessibility for a broader range of applicants.
Effective Date and Policy Impact
This guidance, outlined in Volume 6, Part F, Chapter 5 of the USCIS Policy Manual, applies to all EB-2 NIW petitions pending or filed on or after January 15, 2025. As the controlling policy, it supersedes any conflicting guidance issued previously.
Looking Ahead – USCIS Announces Updated Criteria for EB-2 National Interest Waiver Petitions
The updated policy is expected to benefit both petitioners and USCIS adjudicators by providing a more structured framework for evaluating EB-2 NIW applications. By emphasizing national importance and clarifying the relationship between an applicant’s qualifications and their proposed endeavor, the guidance seeks to streamline the process and reduce ambiguity.
Applicants planning to file for an EB-2 NIW should review the updated Policy Manual for detailed filing requirements and tips. For those already in the process, understanding the new standards will be critical to navigating the adjudication process successfully.
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