On Jan. 15, 2025, USCIS issued guidance in the Policy Manual, Vol. 6, Part F, Ch. 5, to clarify how USCIS evaluates evidence to determine eligibility for Employment-Based Second Preference Classification (EB-2) for National Interest Waiver (NIW) petitions.
Changes Reflected in the Policy Updates
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The policy manual update includes guidance regarding eligibility for EB-2 classification and National Interest Waivers (NIW), including:
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Clarifications of eligibility requirements for EB-2 classification:
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as a member of the professions holding an advanced degree;
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as an individual of exceptional ability in the sciences, arts, or business;
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Expanded guidance, with specific examples, regarding how USCIS evaluates whether an endeavor has national importance;
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Explanations regarding how USCIS evaluates letters of recommendation and business plans when determining whether a person is well-positioned to advance an endeavor; and
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Clarifications regarding specific evidentiary considerations for entrepreneurs, with examples.
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The update also includes clarifications on the need to first demonstrate qualification for EB-2 classification as a threshold issue, and on how the proposed endeavor and intended professional occupation may factor into USCIS’s evaluation of EB-2 eligibility.
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Notably, the updated guidance appears to retain the previous version’s section on specific evidentiary considerations for persons with advanced degrees in STEM.
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USCIS clarifies that the guidance is effective immediately as of 01/15/2025 and applies to pending requests and requests filed on or after 01/15/2025.
Erickson Insights and Analysis
Per this policy manual update, NIW applicants will need to establish their eligibility for EB-2 classification as a threshold issue, and their intended professional occupation and proposed endeavor will factor into USCIS’s evaluation of their EB-2 eligibility.
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The guidance provides a considerably expanded treatment of the national importance requirement, with attention to specific types of arguments advanced by petitioners in regard to national importance and how USCIS tends to view them.
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The guidance also mentions the role that supporting independent evidence plays with regard to letters of recommendation and business plans.
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Finally, the guidance substantially expands the treatment of specific evidentiary considerations for entrepreneurs, with examples, clarifying that not every entrepreneur qualifies for a national interest waiver and that 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.
Overall, these are the most significant updates to NIWs since the landmark Matter of Dhanasar decision, impacting many aspects of the NIW requirements.
Erickson Immigration Group will continue to monitor developments and share updates as more news is available. Please contact your employer or EIG attorney if you have questions about anything we’re reporting above or case-specific questions.