USCIS Clarifies EB-2 National Interest Waiver Criteria: A Step Towards Transparency

The USCIS - United States Citizenship and Immigration Services has recently (15/01/25) released updated guidance on the adjudication of EB-2 NIW - National Interest Waiver petitions. This policy update, while not introducing significant changes to the existing framework, provides a more explicit and detailed explanation of how the agency evaluates these petitions. The clarification, which largely codifies practices that have been implicitly followed by USCIS for some time, is a welcome development for immigration practitioners and petitioners alike.

The updated guidance primarily focuses on elucidating the three-pronged test established in Matter of Dhanasar, which has been the cornerstone of NIW adjudications since 2016. The USCIS has now provided a more comprehensive breakdown of each prong, offering specific examples and considerations that adjudicators will take into account when reviewing petitions.

One of the key aspects of the update is the emphasis on the petitioner's burden to demonstrate qualification for the underlying EB-2 visa classification before addressing the national interest waiver criteria. This clarification, while not a new requirement, underscores the importance of establishing the foundational eligibility for the EB-2 category as either an advanced degree professional or an individual of exceptional ability.

The guidance also elaborates on how USCIS evaluates whether an occupation qualifies as a profession, particularly in cases where the Department of Labor has not certified job requirements. This clarification is especially pertinent for petitioners relying on a combination of a bachelor's degree and five years of progressive experience in the specialty.

Furthermore, the update provides additional insight into how USCIS assesses the national importance of a proposed endeavor. The agency now explicitly states that while potential economic impact is a consideration, endeavors related to research, pure science, and the advancement of human knowledge may qualify even without immediate quantifiable economic benefits to the United States.

The guidance also offers more detailed examples of evidence that can demonstrate a petitioner is well-positioned to advance the proposed endeavor. This includes a non-exhaustive list of documentation types, ranging from degrees and patents to published articles and evidence of investment from U.S. investors.

Of particular note is the section addressing specific evidentiary considerations for entrepreneurs. The USCIS acknowledges the unique aspects of evidence that may be submitted by entrepreneur petitioners and provides examples of how such evidence might support each prong of the Dhanasar's.

While these clarifications are undoubtedly beneficial, it is important to recognize that they largely reflect practices that have been informally adopted by USCIS over time. The agency has, in effect, codified its existing approach to NIW adjudications, providing greater transparency and predictability to the process.

The explicit acknowledgment of the importance of STEM fields and critical emerging technologies in the national interest waiver context is also noteworthy. This aligns with broader U.S. policy objectives to maintain competitiveness in these crucial areas.

In conclusion, while the updated guidance does not represent a significant shift in USCIS policy regarding EB-2 NIW petitions, it does provide a more comprehensive and transparent framework for adjudications. This increased clarity is a positive development that should be welcomed by the immigration community. It allows petitioners and their counsel to better understand the agency's expectations and tailor their submissions accordingly.

The explicit nature of this guidance serves to promote consistency in adjudications and may potentially streamline the process by reducing requests for evidence and appeals. However, it is crucial to remember that each case will continue to be evaluated on its individual merits, and the burden remains on the petitioner to demonstrate eligibility under the three-pronged Dhanasar's.

As the landscape of immigration law continues to evolve, this update represents a step towards greater transparency in the adjudication process. It is a reminder of the ongoing importance of clear communication between immigration authorities and stakeholders, ultimately serving to enhance the integrity and efficiency of the U.S. immigration system.

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Policy Alert PA-2025-03 SUBJECT: Second Preference Eligibility for National Interest Waiver Petitions. Jan/2025. USCIS

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20250115-Employment-BasedNationalInterestWaivers.pdf