United States | USCIS updates guidance on EB-2 national interest waiver petitions

U.S. Citizenship and Immigration Services updated policy guidance to clarify how it evaluates eligibility for the second preference employment-based (EB-2) classification for immigrant petitions filed with a request for a national interest waiver (NIW).

Key Points:

• The new policy guidance addresses:
  • How USCIS considers whether the occupation in which an advanced degree professional proposes to advance an endeavor is a profession
  • How USCIS considers whether the five years of post-bachelor’s experience is in the specialty in which the petitioner is seeking an NIW
  • How exceptional ability must relate to the endeavor proposed as part of the NIW request and is determined on a case-by-case basis
  • How USCIS evaluates whether a proposed endeavor has national importance
  • How USCIS evaluates evidence, such as letters of support and business plans, when determining whether a person is well positioned to advance an endeavor
• The new policy guidance builds on a previous policy manual update that covered the unique considerations for persons with advanced degrees in science, technology, engineering and math fields, as well as entrepreneurs.
• This guidance is effective immediately and applies to requests pending or filed on or after the publication date of Jan. 15, 2025.

Additional Information: While an EB-2 petition is typically filed by an employer after obtaining a labor certification from the Department of Labor, USCIS can waive this requirement if it is in the interest of the United States. Petitioners seeking an NIW must first demonstrate that they qualify for the underlying EB-2 classification as either a member of the professions holding an advanced degree or an individual of exceptional ability in the sciences, arts or business.

This alert has been provided by the BAL U.S. Practice Group.

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