USCIS has updated their policy guidance for how they will evaluate eligibility for EB-2 National Interest Waivers. The updated guidance provides additional information about how USCIS evaluates eligibility for the national interest waiver and clarifies that before an employer can establish eligibility for a national interest waiver, the petitioner must first demonstrate qualification for the underlying EB-2 visa classification.
Typically, as part of an employer sponsored permanent residency process (known as the PERM process), an employer files a Form I-140 application following the confirmation of the labor certification from the Department of Labor. However, there are some circumstances where USCIS might waive the requirement to follow the PERM process when they determine the employee is performing activities that are deemed to be in the national interest of the United States.
In the case of individuals who fall under the secondary preference employment based classification (EB-2) they may be eligible for a National Interest Waiver (NIW.) The EB-2 category is for individuals with an advanced degree in any U.S. academic or professional degree or a foreign equivalent degree above that of a bachelor’s. In the alternative an employee can also qualify for EB-2 if they have a U.S. bachelor or a foreign equivalent followed by at least 5 years of progressive experience in the specialty.
The new guidance explains how USCIS is going to determine experience in the specialty and whether the occupation is a profession that does not require a labor certification.
Under the new guidance, the Petitioners must first qualify for EB-2 by demonstrating an advanced degree or exceptional ability.
USCIS uses a three-pronged test to assess NIW eligibility. First, USCIS will review if the proposed endeavor has substantial merit and national importance. Second, they will assess whether the petitioner is well-positioned to advance the endeavor. Finally, USCIS will determine on balance if waiving the job offer requirement is a benefit to the US more than requiring it.
The new guidance includes evaluating the relationship between the exceptional ability and the endeavor. They include examples of evidence that USCIS may consider such as degrees, publications, patents, and business plans. The policy also includes STEM-Specific considerations including that advanced STEM degrees and work in critical or emerging technologies are given weight and evidence from government agencies supporting the endeavor strengthens the case.
Entrepreneurs seeking NIWs must provide specific evidence of the endeavor’s merit, feasibility, and national impact. Entrepreneurs must also demonstrate ownership or an active role in a US based entity and provide evidence such as investment, revenue growth, or job creation to support their petitions.
Finally, the new policy elaborates on their evaluation process. USCIS will assess the totality of the evidence and consider each petition on its merits. As such a degree or general statement of economic benefit will be insufficient to establish the merit for the waiver. USCIS will require specific and substantiated evidence to establish eligibility for the NIW waiver.
This guidance became effective immediately upon publication (January 15, 2025) and updates Volume 6 of the USCIS Policy Manual, emphasizing a case-by-case approach to determine NIW eligibility.
While the new USCIS policy guidance does not change the eligibility requirements for an EB-2 based National Interest Waiver, it does provide additional guidance on the type of evidence that must be shown in order to qualify for a NIW waiver. When assessing an individual’s eligibility for an NIW waiver, companies and their representatives should review the new guidance to determine if they can provide the evidence needed to satisfy the waiver requirements.
For a deeper discussion on the above, please reach out to your Vialto Partners point of contact, or alternatively:
Manish Daftari
Partner
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