On January 15, 2025, the U.S. Citizenship and Immigration Services (USCIS) released updated police guidance for EB-2 National Interest Waiver petitions.
The updated policy guidance is effective immediately and applies to requests pending or filed on or after its publication date of January 15.
This guidance provides insights into how USCIS officials will determine eligibility for NIW petitions for employment-based immigrants, who are seeking a waiver of the job offer requirement, and thus labor certification.
Updated Policy Highlights
- Clarifies that a petitioner seeking a national interest waiver must first demonstrate qualification 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.
- Explains that USCIS considers on a case-by-case basis whether the occupation in which the person proposes to advance an endeavor is a profession and, if applicable, whether the 5 years of post-baccalaureate experience is in the specialty, noting that it is the petitioner’s burden to establish each element of eligibility.
- Clarifies that USCIS determines the relationship between exceptional ability and the proposed endeavor on a case-by-case basis, considering any shared skillsets, knowledge, or expertise.
- Provides additional guidance, with examples, about how USCIS evaluates whether a proposed endeavor has national importance.
- Explains how USCIS evaluates evidence such as letters of support and business plans, when determining whether a person is well positioned to advance an endeavor.
- Clarifies, with examples, that not every entrepreneur qualifies for a national interest waiver. While USCIS decides each case on its merits, broad assertions regarding general benefits to the economy and potential to create jobs will not establish an entrepreneur’s qualification for a national interest waiver.
- Explains that, as with all adjudications, USCIS evaluates all of the evidence in the aggregate, and that the list of suggested evidence for entrepreneurs is not intended to suggest that any one piece, by itself, necessarily establishes eligibility. USCIS reviews all of the person’s education, experience, and skills and the benefit to the national interest when determining eligibility.
What is the National Interest Waiver?
The EB-2 National Interest Waiver is an employment-based immigrant petition for individuals seeking a green card based on the national importance of their work to the U.S. government. Qualifying individuals may self-petition for their green card, and do not need a job offer nor employment sponsorship to apply.
To qualify for the National Interest Waiver, a petitioner must first demonstrate either:
- That they must possess an advanced degree such as a U.S. bachelor’s degree (or foreign equivalent degree) followed by 5 years of progressive experience in the specialty OR
- Exceptional ability in the proposed endeavor, which is defined as a “degree of expertise significantly above that ordinarily encountered in the sciences, art, or business.”
Exceptional ability may be demonstrated by satisfying at least three of the following criteria:
- Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
- Letters from current or former employers documenting at least 10 years of full-time experience in your occupation
- A license to practice your profession or certification for your profession or occupation (if applicable)
- Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
- Membership in a professional association(s)
- Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
- Other comparable evidence of eligibility is also acceptable.
The updated policy guidance makes clear that exceptional ability must relate to the proposed endeavor the beneficiary will undertake. USCIS determines the relationship of exceptional ability to the proposed endeavor on a case-by-case basis, considering the beneficiary’s shared skillsets, knowledge, or expertise.
Whether demonstrating EB-2 eligibility as an advanced degree professional or as a person of exceptional ability, the petitioner must clearly describe in a straightforward manner the person’s occupation and proposed endeavor. The intended occupation is the one through which the person plans to advance the proposed endeavor, and the proposed endeavor is more specific.
The Dhanasar Criteria
Once applicants have demonstrated that they qualify based on their advanced degree, or exceptional ability, they must demonstrate that they meet the Dhanasar criteria of the National Interest Waiver as follows:
- Evidence the Endeavor has Substantial Merit and National Importance
- Evidence the Beneficiary is Well-Positioned to Advance Your Endeavor and
- On Balance, It Would Be Beneficial to the United States to Waive the Job Offer and Thus the Permanent Labor Certification Requirements
Members of the Professions Holding Advanced Degrees
The new guidance explains that for advanced degree professionals seeking an NIW, USCIS considers whether the occupation in which the petitioner proposes to advance an endeavor is a “profession” and, if applicable, whether the beneficiary’s 5 years of post-bachelor’s experience is in the specialty.
Defining “Professions”
The intended occupation through which the beneficiary plans to advance the proposed endeavor must meet the definition of a “profession.”
USCIS defines a “profession” as one of the occupations listed in Section 101(a)(32) of the Immigration and Nationality Act (INA) as well as any occupation for which a baccalaureate or foreign equivalent is the minimum requirement for entry into the occupation
Additionally, the guidance adds that the professional occupation must also require a bachelor’s degree for entry into the occupation, “not everyone who holds an advanced degree (or its defined equivalent) necessarily qualifies for classification as a member of the professions holding an advanced degree. The occupation underlying the endeavor must also require a bachelor’s degree for entry into the occupation.”
The petitioner has the burden of showing, by a preponderance of the evidence, that the intended occupation requires at least a bachelor’s degree or its foreign equivalent degree for entry.
Advanced Degrees
The guidance clarifies that an advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above that of a baccalaureate.
A U.S. baccalaureate or a foreign equivalent followed by at least 5 years of post-baccalaureate progressive experience in the specialty is considered the equivalent of an advanced degree.
For those relying on a bachelor’s degree followed by 5 years of progressive experience in the specialty, that experience must be in the specialty, and must have occurred after completion of the bachelor’s degree or foreign equivalent degree.
Qualifying Post-Baccalaureate Work Experience
Where the person has 5 years of progressive post-baccalaureate experience in the same specialty as the degree and seeks to work in a related endeavor, the experience is generally considered to be qualifying.
However, USCIS points out that there may be cases where the post-baccalaureate experience is not qualifying because either the experience is unrelated to the degree, unrelated to the endeavor, or both.
Exceptional Ability
Independent of the national interest waiver analysis, the guidance states that in order to qualify for the exceptional ability classification, “a person must substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States because of their exceptional ability.”
The claimed “area of exceptional ability” must also be directly related to the person’s proposed endeavor. In evaluating the relationship between exceptional ability and the proposed endeavor, USCIS considers whether the area of exceptional ability and the proposed endeavor share skillsets, knowledge, or expertise.
For petitions filed for persons of exceptional ability, the guidance also states that “submission of evidence that meets the three required regulatory criteria does not necessarily establish that the beneficiary is qualified for the classification.”
When considering whether at least three criteria have been met, “an officer must assess the quality of such evidence, in addition to the quantity of the evidence presented, in determining whether the petitioner has met its burden…”
For example, a person who has computer science education or experience that does not equate to the definition of an advanced degree, and who is proposing an endeavor related to computer science may qualify as a person with exceptional ability, if USCIS determines that they have satisfied at least three of the six regulatory criteria, and demonstrated their exceptional ability in an area such as computer science, which is directly related to their endeavor.
However, if a person with the same credentials were to propose an endeavor that does not relate to the area of computer science, that person would generally not qualify for the classification even if they have exceptional ability in the area of computer science.
The Dhanasar Criteria
- First Prong: The Proposed Endeavor has both Substantial Merit and National Importance
The petitioner must show by a preponderance of the evidence that the proposed endeavor has substantial merit and national importance.
This requires the petitioner to provide details not just about what the occupation normally involves, but what types of work they propose to undertake specifically within that occupation.
For example, while engineering is an occupation, the explanation of the proposed endeavor should describe the specific projects and goals, and the area of engineering in which the person will work, rather than simply listing the duties and responsibilities of an engineer.
Substantial Merit
When explaining the endeavor, the petitioner must do so in a straightforward manner and clearly lay out the potential direct impacts of the endeavor and whether the endeavor will be furthered through the course of the person’s duties at a particular employer or some other way.
The endeavor’s merit may be demonstrated in areas including, business, entrepreneurship, science, technology, culture, health, or education.
Officers may also consider evidence of the endeavor’s potential significant economic impact, but “merit may be established without immediate or quantifiable economic impact” and “endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.”
National Importance
In determining national importance, the officer’s analysis focuses on what the person will be doing rather than the specific job title or occupational classification. The analysis considers whether the petition contains substance that explains and substantiates how working in the proposed endeavor meets the national importance standard.
For example, proposing to work in an occupation with a national shortage, or serve in a consulting capacity for others alone, is insufficient.
As another example, assertions regarding the general importance of business owners or entrepreneurs for job creation or other economic benefits would not alone be sufficient to demonstrate national importance in the context of a national interest waiver request.
A petition involving a startup company should demonstrate in detail how this specific endeavor meets the national interest requirement.
Benefits to a specific employer alone, even an employer with a national footprint, are not sufficient.
For example, a person developing a drug for a pharmaceutical company may establish national importance by demonstrating the prospective public health benefits of the drug, instead of solely projecting the profits that will accrue to the employer.
If the evidence of record demonstrates that the beneficiary’s proposed endeavor has the significant potential to broadly enhance societal welfare or cultural or artistic enrichment, or to contribute to the advancement of a valuable technology or field of study, it may rise to the level of national importance.
- Second Prong: The Person is Well Positioned to Advance the Proposed Endeavor
In evaluating whether the person is well positioned to advance the endeavor, USCIS considers factors including, but not limited to:
- The person’s education, skills, knowledge, and record of success in related or similar efforts
- Evidence of a detailed proposal or plan that the person developed, or played a significant role in developing, for future activities related to the proposed endeavor
- Any progress towards achieving the proposed endeavor and
- The interest or support garnered by the person from potential customers, users, investors, or other relevant entities or persons
To meet this prong, the petitioner should submit:
- evidence to document the person’s past achievements
- explain how those achievements relate to the proposed endeavor
- provide evidence of progress towards achieving the endeavor and
- corroborate projections related to the proposed endeavor
Below is a non-exhaustive list provided by USCIS of the types of evidence that may demonstrate that the person is well positioned to advance a proposed endeavor:
- Degrees, certificates, or licenses in the field
- Patents, trademarks, or copyrights developed by the person
- Published articles or media reports about the person’s achievements or current work
- Documentation demonstrating a strong citation history of the person’s work or excerpts of published articles showing positive discourse around, or adoption of, the person’s work
- Evidence that the person’s work has influenced the field of endeavor
- A plan describing how the person intends to continue the proposed work in the United States
- Correspondence from prospective or potential customers, users, investors, or other relevant entities
- Documentation reflecting feasible plans for financial support
- Evidence that the person has received investment from U.S. investors, such as venture capital firms, angel investors, or start-up accelerators, and that the amounts are appropriate to the relevant endeavor
- Copies of contracts, agreements, or licenses showing the potential impact of the proposed endeavor
- Letters from government agencies or quasi-governmental entities in the United States demonstrating that the person is well positioned to advance the proposed endeavor (see below for a more detailed discussion of supporting evidence from interested government agencies and quasi-governmental entities)
- Evidence that the person has received awards or grants or other indications of relevant non-monetary support (for example, using facilities free of charge) from federal, state, or local government entities with expertise in economic development, research and development, or job creation and
- Evidence demonstrating how the person’s work is being used by others, such as, but not limited to:
- Contracts with companies using products that the person developed or assisted in developing
- Documents showing technology that the person invented, or contributed to inventing, and how others use that technology and
- Patents or licenses for innovations the person developed with documentation showing why the patent or license is significant to the field
Letters of Recommendation
Letters are persuasive when they are from experts in the person’s field who have first-hand knowledge of the person’s achievements, describe those achievements, provide specific examples of how the person is well positioned to advance the person’s endeavor, and are supported by other independent evidence.
Business Plans
Business plans or other similar descriptions of the person’s plans, while useful in explaining the person’s objectives, should be supported by other independent evidence.
Officers must consider the totality of circumstances to determine whether the preponderance of evidence establishes that the person is well positioned to advance the proposed endeavor.
- Third Prong: On Balance, It Would be Beneficial to the United States to Waive the Job Offer and thus the Permanent Labor Certification Requirements
An officer assesses whether the endeavor and the fact that the beneficiary may be well-positioned to advance that endeavor, taken together, provide benefits to the nation such that a waiver of the labor certification requirement outweighs the benefits that ordinarily flow from that requirement.
For example, in the case of an entrepreneur, where the person is self-employed in a manner that generally does not adversely affect U.S. workers, or where the person establishes or owns a business that provides jobs for U.S. workers, there may be little benefit from the labor certification.
In establishing eligibility for the third prong, petitioners may submit evidence relating to one or more of the following factors, as outlined in Matter of Dhanasar:
- Whether, in light of the nature of the person’s qualifications or proposed endeavor, it would be impractical to obtain a labor certification
- The benefit to the United States from the person’s prospective contributions, even if other U.S. workers were also available and
- The national interest in the person’s contributions is sufficiently urgent to warrant forgoing the labor certification process, such as a time-sensitive public health or safety benefit offered by the endeavor.
More specific considerations may include:
- Whether the labor certification process may prevent an employer from hiring a person with unique knowledge or skills exceeding the minimum requirements standard for that occupation, which cannot be appropriately captured by the labor certification
- Whether the person’s endeavor has the potential to generate considerable economic impact consistent, for example, with economic revitalization and
- Whether the person’s endeavor may lead to potential job creation.
Evidence of a national labor shortage in the person’s occupation would not, by itself, satisfy this third prong.
Evidentiary Considerations for Persons with Advanced Degrees in Science, Technology, Engineering, or Mathematics (STEM) Fields
USCIS recognizes the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.
To identify a critical and emerging technology field, officers consider governmental, academic, and other authoritative and instructive sources, and all other evidence submitted by the petitioner.
The lists of critical and emerging technology subfields published by the Executive Office of the President, by either the National Science and Technology Council or the National Security Council, are examples of authoritative lists.
When evaluating the third prong for beneficiaries in STEM fields, USCIS considers the following combination of facts contained in the record to be a strong positive factor:
- The person possesses an advanced STEM degree, especially a Ph.D.
- The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness and
- The person is well positioned to advance the proposed STEM endeavor of national importance.
For example, the benefit to the U.S. is clear where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness, or when the petition is supported by letters from interested U.S. government agencies.
Entrepreneurs
The guidance clarifies that not every entrepreneur qualifies for a national interest waiver. While USCIS decides each case on its merits, broad assertions regarding general benefits to the economy and potential to create jobs will not establish an entrepreneur’s qualification for a national interest waiver.
For example, an entrepreneur cannot demonstrate national importance under the first prong solely by opening a consulting firm for those working or seeking to work in a nationally important occupation.
Similarly, statements and evidence regarding the importance of the relevant industry overall, such as the car dealership industry, will not demonstrate that a person seeking to start a car dealership satisfies the national importance prong.
Successful petitions should discuss how the person’s record of success would translate to a proposed plan or forecast for continued success, and steps they have taken toward those proposed activities, and plans that tie into the person’s background and expertise.
Details such as whether the person has met certain achievements toward the endeavor that may have generated interest from potential customers, users, investors, or other relevant entities or individuals, are beneficial.
Ownership of a company, while relevant to whether the person is well positioned to advance the endeavor, rarely establishes eligibility on its own. USCIS reviews all of the evidence submitted, including the person’s education, experience, and skills when determining eligibility.
Evidence of Ownership and Role in the U. S. Based Entity
Evidence that a petitioner has an ownership interest in an entity based in the United States, of which the petitioner may also be the founder or co-founder, and evidence that shows he or she has assumed an active and central role in the operations of the entity (by their appointment in a position of authority), can have probative value in determining whether the petitioner is well positioned to advance the endeavor.
Investments
An investment, binding commitment to invest, or other evidence demonstrating a future intent to invest in the petitioner’s entity by an outside investor, consistent with industry standards, may provide independent validation and support of a finding of the substantial merit of the proposed endeavor or the petitioner being well positioned to advance the proposed endeavor.
This investment may come from persons, such as angel investors, or established organizations, such as venture capital firms. Because different endeavors have different capital needs, USCIS also considers the amount of capital that would be appropriate to advance the endeavor in determining whether the petitioner has secured sufficient investments.
Revenue Generation, Growth in Revenue, and Job Creation
Relevant growth metrics may support that the proposed endeavor, the petitioner’s start-up entity, or both, has substantial merit or that the petitioner is well positioned to advance the proposed endeavor.
Such evidence may include a showing that the entity has exhibited growth in terms of revenue generation, jobs created in the United States, or both, and the petitioner’s contribution to such growth.
This evidence may also support that the entrepreneur’s proposed endeavor, the petitioner’s start-up entity, or both, have national importance when coupled with, for example, evidence that the current or proposed start-up entity is located in an economically depressed area that has benefited or will benefit from jobs created by the start-up entity or that there is a significant potential for job creation.
Conclusion
Overall, this new guidance provides helpful insights for petitioners to succeed in their National Interest Waiver petitions by providing clear examples of how to meet each of the required criteria. STEM applicants with advanced degrees working in areas of critical national importance can take advantage of these new policies to showcase their contributions to the United States.
To learn more about the updated policy guidance, please click here.
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Helpful Links
- Employment-Based Immigration: Second Preference EB-2 NIW
- USCIS Updates Guidance on EB-2 National Interest Waiver Petitions
- USCIS Policy Guidance Second Preference Eligibility for National Interest Waiver Petitions
- February 2025 Visa Bulletin
- January 2025 Visa Bulletin
- Adjustment of Status Filing Dates from Visa Bulletin
- USCIS Processing Times
- Immigrant Visa Backlog Report
- ImmigrationLawyerBlog
- ImmigrationU Membership
- Success stories
- Youtube channel
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