New EB-2 NIW policy interpretation update from USCIS

January 17, 2025

Yesterday, January 15, 2025, USCIS issued an important document updating its policy guidance for #EB2NIW petitions. While USCIS uses the term "update," the document doesn’t introduce any revolutionary changes, but instead provides important clarifications on how officers evaluate petitions and what evidence petitioners should provide.

The key highlights of this updated policy guidance are the following:

1) Eligibility for Underlying EB-2 Classification – petitioners seeking the NIW must first demonstrate eligibility for the EB-2 classification as either advanced degree professionals or individuals of exceptional ability.

2) Advanced degree professionals and progressive experience – an advanced degree is either a master’s degree or a Ph.D., or a bachelor’s degree followed by 5 years of progressive experience in the specialty. USCIS clarifies three important things:

• First, the occupation through which the petitioner intends to advance the proposed endeavor must be a “profession,” meaning that it must usually require at least a bachelor’s degree. Holding an advanced degree is insufficient; petitioners must also demonstrate that the occupation in which they intend to work in the U.S. typically requires at least a bachelor’s degree.

• Second, for petitioners who do not hold a master’s degree or a Ph.D. but rather rely on a bachelor’s degree + 5 years of post-bachelor’s experience, the post-bachelor’s experience must be directly related to the field of the degree.

• Third, if the professional occupation requires a degree in a specific field, the experience has to usually be related to the proposed endeavor. For professions that do not require a degree in a specific field, USCIS generally interprets the petitioner’s specialty as related to the proposed endeavor.

3) Exceptional ability – petitioners who do not hold an advanced degree can qualify for EB-2 classification as individuals of exceptional ability. USCIS clarifies that a petitioner’s area of exceptional ability must be related to the proposed endeavor.

4) National importance of the proposed endeavor – key points here include:

• USCIS reiterates the difference between occupation (more general) and proposed endeavor (more specific).

• USCIS encourages a clear and straightforward description of the endeavor, even for cases involving highly technical occupations and endeavors.

• USCIS clarifies that a proposed endeavor holds national importance if it has national or even global implications within a particular field, if it has significant potential to employ U.S. workers or other substantial positive economic effects, if it has the 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.

• Generally, an endeavor that only benefits a petitioner’s “immediate circle” (i.e. a petitioner’s employer or clients) is not nationally important. In this sense, USCIS provides several examples about how it evaluates whether a proposed endeavor has national importance.

• Working in an occupation with a national shortage is per se insufficient.

5) The “well-positioned” prong – USCIS provides a non-exhaustive list of evidence that a petitioner may use to demonstrate they are well positioned to advance an endeavor.

6) The “on balance” prong – USCIS provides the criteria that a petitioner can use to satisfy this prong. Evidence of labor shortage would not, by itself, satisfy this prong.

7) STEM professions – USCIS acknowledges the significance of STEM professions, with a more specific emphasis on critical and emerging technologies and on STEM areas related to U.S. competitiveness and national security.

8) Entrepreneurs – for entrepreneurs, general claims that entrepreneurship generally benefits the economy are insufficient.

This policy guidance update does not reveal any drastic change but instead does two critical things. First, it signals a shift towards a more restrictive interpretation with respect to some aspects of NIW eligibility. Second, it provides immigration officers with clarifications that will hopefully lead to more uniform NIW decisions.