Takeaways

• USCIS issued updated policy guidance on 1/15/25 on how it will evaluate candidates for EB-2 immigrant visas seeking a National Interest Waiver (NIW).
• USCIS will be more closely scrutinizing a candidate’s qualifications, profession, experience, and support letters.
• These changes will make it more difficult to obtain NIWs in the future.

The U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance on Jan. 15, 2025, to clarify how it will evaluate candidates’ eligibility for second preference employment based (EB-2) immigrant visa with a request for a National Interest Waiver (NIW). This update undoubtedly signals that the NIW process will be much more heavily vetted.

Generally, an employer files an EB-2 petition using Form I-140 after receiving a PERM labor certification from the U.S. Department of Labor (DOL). When an employer files the labor application with DOL for certification, it must attest that it will not displace any U.S. workers by hiring the foreign national, that such hiring will not adversely affect the job opportunities and working conditions of similarly employed U.S. workers, and that there are no able, qualified, and available U.S. workers. USCIS can waive the labor certification requirement, however, when a petitioner can show that doing so is in the United States’ interest. Additionally, and critically, individuals seeking a NIW may do so without having an employer sponsor the petition.

The Jan. 15, 2025, guidance confirms that for advanced degree professionals seeking an NIW, USCIS will need confirmation that the occupation is a “profession” and, if applicable, whether the requisite five years of post-bachelor’s experience is in that specialty. For individuals who are seeking an NIW based on exceptional ability, USCIS will scrutinize each petition on a case-by-case basis to confirm the exceptional ability is directly related to the proposed endeavor.

USCIS’ update also clarifies that the government will be taking a much closer look at the NIW petition supporting evidence. For example, the agency has expanded the list of information it hopes to see in letters of support and business plans. Further, USCIS has clarified that broad assertions about an individual’s potential benefit to the economy will not be sufficient evidence. This is particularly true for entrepreneurs. An entire section in the guidance is dedicated to their applications.

The NIW had been viewed as an attractive alternative to the laborious and time-consuming PERM labor certification process. While still an appealing route, the USCIS update appears to have raised the standard for NIW approval. As we wait to see how the guidance will be implemented and applied by USCIS adjudicators, it will be crucial for petitioners and employers to consider the new update as they make NIW sponsorship decisions and work with counsel to prepare those cases.