USCIS Updates Guidance on EB-2 National Interest Waiver Petitions

U.S. Citizenship and Immigration Services is updating its policy guidance to clarify how we evaluate eligibility for the second preference employment-based (EB-2) classification for immigrant petitions filed with a request for a national interest waiver (NIW). In general, an employer files an EB-2 petition using Form I-140, Immigrant Petition for Alien Workers, after obtaining a labor certification from the Department of Labor. USCIS, however, can waive the requirement of a job offer, and thus, the labor certification if it is in the interest of the United States. In addition, individuals seeking an NIW may file a petition on their own behalf. A petitioner 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. The new guidance explains how, for advanced degree professionals seeking an NIW, we consider whether the occupation in which the petitioner proposes to advance an endeavor is a profession and, if applicable, whether the 5 years of post-bachelor’s experience is in the specialty. The guidance also addresses how, for persons of exceptional ability seeking an NIW, that exceptional ability must relate to the endeavor proposed as part of the NIW request. We determine the relationship of exceptional ability to the proposed endeavor on a case-by-case basis, considering any shared skillsets, knowledge, or expertise. In addition, this new guidance provides information about how we evaluate whether a proposed endeavor has national importance and explains how we evaluate evidence, such as letters of support and business plans, when determining whether a person is well positioned to advance an endeavor. This new guidance builds on a previous Policy Manual update that discussed the unique considerations for persons with advanced degrees in science, technology, engineering, and math (STEM) fields and entrepreneurs. This guidance, contained in Volume 6, Part F, Chapter 5 of the Policy Manual, is effective immediately and applies to requests pending or filed on or after the publication date. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance. For more information and filing tips, see Employment-Based Immigration: Second Preference EB-2.