The U.S. Citizenship and Immigration Services (USCIS) recently issued a Policy Alert updating the criteria and process for Employment-Based National Interest Waivers (EB-2 NIW). Effective January 15, 2025, these updates refine the adjudication standards for EB-2 NIW petitions, impacting applicants seeking waivers of the job offer and labor certification requirements under the second preference employment-based (EB-2) immigrant category.
EB-2 NIW Overview
The EB-2 NIW classification is available for individuals who hold advanced degrees or have exceptional ability in the sciences, arts, or business. Typically, an employer must obtain a labor certification from the U.S. Department of Labor (DOL) before filing for EB-2 classification. However, USCIS may waive this requirement if the petitioner demonstrates that granting the waiver is in the national interest. Since USCIS issued updated policy guidance on NIWs in January 2022, there has been a significant increase in EB-2 NIW filings.
Key Updates in the USCIS Policy Manual
USCIS has introduced new sections in its Policy Manual to provide greater clarity on eligibility criteria, evidentiary standards, and the three-prong test established in Matter of Dhanasar. These updates emphasize the need to:
- Establish primary EB-2 eligibility criteria.
- Demonstrate a direct relationship between the beneficiary’s qualifications and the proposed endeavor.
- Prove the national importance of the proposed endeavor.
Additionally, USCIS now requires clearer descriptions of the petitioner’s occupation and proposed endeavor. The petition must establish that the occupation qualifies as a “profession” under INA 101(a)(32) and 8 C.F.R. § 204.5(k)(2). Furthermore, when seeking EB-2 NIW classification based on a bachelor’s degree plus five years of progressive experience, the petitioner must prove that the experience was gained after earning the degree and is directly related to the specialty field.
Refinements to the Three-Prong Test for EB-2 NIW
- Substantial Merit and National Importance: The petitioner must provide substantive evidence demonstrating the endeavor’s direct impact and broad national significance. General claims of economic benefits or commercial success are insufficient without demonstrating a broader impact on U.S. national interests.
- Well-Positioned to Advance the Endeavor: The petitioner must provide detailed evidence, such as a track record of accomplishments, letters from field experts with firsthand knowledge, and independent corroborative materials. Business plans alone are insufficient without additional independent support.
- Balancing Test for the National Interest Waiver: USCIS emphasizes that meeting the first two prongs is not enough—petitioners must also prove that granting a waiver is beneficial to the U.S. economy, public health, or another area of substantial merit. The new guidance removes references to STEM competitiveness as a deciding factor but still acknowledges economic and employment impacts.
Special Considerations for Entrepreneurs
USCIS recognizes that EB-2 NIW petitions for entrepreneurs require unique evidence beyond traditional employment-based categories. General assertions about economic contributions or job creation are not sufficient to establish national importance. Instead, entrepreneurs must provide specific evidence demonstrating their active and central role in a U.S.-based entity, including:
- Persuasive specific details, such as information about a person’s record of success and how those and other actions forecast the likelihood of continued success.
- Business plans with detailed market metrics and projected job growth.
- Unique evidence demonstrating that an entrepreneur’s active and central role in a U.S.-based entity, where their knowledge, skills, or experience significantly advance the proposed endeavor in the U.S.
- Evidence of investments, or commitments to invest, in a proposed endeavor.
- Emphasize the probative value of metrics on the endeavor, such as anticipated revenue and job growth in the United States.
Conclusion
The updated USCIS Policy Manual reflects ongoing refinements to the EB-2 NIW adjudication process in response to increasing petition volumes and evolving national interest considerations. These changes signal USCIS’ expectation that EB-2 NIW petitions contain robust, well-documented evidence satisfying all three prongs of the Dhanasar test. Petitioners must ensure their applications clearly demonstrate a nexus between their qualifications, the endeavor’s national importance, and their ability to advance it. By thoroughly documenting these aspects, EB-2 NIW petitioners can improve their chances of approval under the new policy guidelines.
We will continue to monitor and share additional updates as USCIS releases pertaining to EB-2 NIW petitions.
At HSD Immigration Lawyer, we specialize in complex employment-, investment- and family-based immigration matters. Contact one of HSD Immigration Lawyer offices in Chicago, IL, Naperville, IL, Raleigh, NC, or Clark, NJ, for additional information about this recent announcement and for filing an EB-2 NIW petition.