USCIS will clarify how it evaluates EB-2 National Interest Waiver (NIW) green card petitions for certain talented individuals. This new guidance will confirm options for entrepreneurs and STEM professionals, as well as others who may qualify for this green card pathway.

Typically, an employer seeking to sponsor a noncitizen for permanent residency must obtain a permanent labor certification from the Department of Labor. The labor certification requires proving that no qualified U.S. workers exist for this position and that the employment will not adversely affect similar U.S. workers – a long, costly, and burdensome process. 

However, for certain workers, the labor certification process and job offer requirements may be waived if in the interest of the United States. Under this provision, known as the NIW, either the employer or the individual can petition for the green card.

An EB-2 NIW green card is available to a person who:

• Qualifies for the EB-2 preference category (as either a professional with an advanced degree, or an individual of exceptional ability in the sciences, arts, or business);
• Puts forth a proposed endeavor with both substantial merit and national importance;
• Is well positioned to advance the proposed endeavor; and
• Proves that it would be beneficial to the United States to waive the job offer and the permanent labor certification requirements.

USCIS’ updated guidance (to be incorporated in full into the Policy Manual at a later date), will:

• Clarify, for advanced degree professionals, that USCIS will determine on a case-by-case basis:
  • Whether the occupation in which the petitioner proposes to advance an endeavor is a “profession” (requiring at least a bachelor’s degree or as otherwise defined by statute);
  • For those holding a U.S. bachelor’s or foreign equivalent followed by at least 5 years of progressive experience, whether the years of experience align with the specialty;
  • That it is the petitioner’s burden to establish each element of eligibility.
• Clarify, for persons of exceptional ability seeking an NIW, that USCIS will determine on a case-by-case basis:
  • How exceptional ability must relate to the endeavor proposed, considering any shared skillsets, knowledge, or expertise;
  • That it is the petitioner’s burden to establish this connection.
• Explain how USCIS evaluates whether a proposed endeavor has “national importance,” on a case-by-case basis, and provide examples:
  • An engineer may propose a specific endeavor that is in the national interest, by defining the endeavor more narrowly than a general engineering job;
  • A chemist may prove that developing a medicine is in the national interest due to its public health benefits rather than just its profitability;
  • An inventor may prove that developing a technology is in the national interest due to the potential for its widespread adoption, licensing, novelty, importance, or impact, rather than only its benefits to the company;
  • A software engineer may not be able to prove that adapting their employer’s code for other clients will be in the national interest without broader impacts supported by specific evidence. 
• Explain how USCIS evaluates independent evidence when determining whether a person is “well positioned to advance an endeavor”;
  • Letters of support are most persuasive when written by experts in the field who know the candidate’s achievements firsthand, give specific examples, and provide independent evidence;
  • Business plans are most effective when supported by independent evidence.
• For STEM professionals:
  • Clarify that USCIS favors candidates with advanced STEM degrees and relevant work histories, with proposed endeavors furthering work in critical and emerging STEM areas that would advance U.S. economic competitiveness or national security.
• For entrepreneurs:
  • Clarify that not every entrepreneur qualifies for a NIW, but that USCIS decides each case on the merits. Broad assertions regarding general benefits to the economy, national importance, and potential for job creation will not qualify an entrepreneur for a NIW;
  • Provide examples of market metrics and achievements showing that the person is well-positioned to advance the entrepreneurial endeavor;
  • Confirm that USCIS officers should consider that many entrepreneurs do not follow traditional career paths or structure their entities in a single way;
  • Confirm that no single piece of suggested evidence for entrepreneurs by itself necessarily establishes eligibility, but that USCIS reviews all of the person’s education, experience, and skills and the benefit to the national interest.

This new guidance builds on a previous USCIS Policy Manual update that clarified how the NIW can be used by people with advanced degrees in STEM fields and entrepreneurs.

Meltzer Hellrung welcomes these confirmations and clarifications of policy, but also hopes the Trump administration will not use this clarity as an opportunity to roll back existing policy.

For more individualized advice, please contact your designated Meltzer Hellrung attorney.