USCIS Policy Update on National Interest Waivers for EB-2 Classification

On January 15, 2025, the U.S. Citizenship and Immigration Services (USCIS) issued a significant update to its policy guidance on National Interest Waivers (NIW) for the Employment-Based Second Preference (EB-2) classification. This article outlines the key changes in PA-2025-03 and their implications for individuals seeking NIWs, particularly those with advanced degrees or exceptional abilities.

This update provides detailed guidance on defining professions, evidentiary requirements, and the national interest standard.

EB-2 is available to members of the professions holding an advanced degree and to persons of exceptional ability.

Section 101(a)(32) of the Immigration and Nationality Act provides that “[t]he term ‘profession’ shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries.”

A U.S. bachelor's followed by at least five years of progressive experience is considered the equivalent of an advanced degree.

Key Updates and Implications

1. Clarified Definition of “Profession” and Requirements for Advanced Degree
   USCIS has emphasized a precise definition of “profession” under INA § 101(a)(32). A profession is any occupation for which a U.S. bachelor's degree, or its foreign equivalent is the minimum requirement.

• Am I a “Member of the Professions”? The update emphasizes that “a profession is defined as one of the occupations listed in INA 101(a)(32), or any occupation for which a U.S. bachelor’s degree or its foreign degree equivalent is the minimum requirement for entry into the occupation.” While possession of an advanced degree satisfies the EB-2 classification, USCIS will scrutinize whether the proposed endeavor aligns with the underlying profession. For example, an individual with a Ph.D. in engineering proposing to establish a bakery may face challenges in qualifying under this criterion, as the occupation of baker does not normally require a bachelor’s degree for entry. USCIS will consider on a case-by-case basis whether the occupation in which the petitioner proposes to advance their endeavor is a profession.

• For clients without an advanced degree who are of exceptional ability: The update underscores the importance of clearly defining the relationship between qualifications and the specific occupation or project that forms the basis of the NIW petition. For example, a petition who has education or experience in computer science but not an advanced degree might still qualify as having “exceptional ability” if they meet at least three out of six specific requirements set by USCIS and show that their exceptional ability is directly connected to their work in computer science. However, if the same person plans to work in a field unrelated to computer science, USCIS may find that the person does not qualify as having exceptional ability for that purpose, even if they are highly skilled in computer science.

• For clients relying on a U.S. bachelor’s degree and five years of progressive experience: USCIS now strictly requires that the experience aligns with the proposed endeavor. For example, a bachelor’s degree in chemistry paired with five years of unrelated experience, such as restaurant management, will not satisfy the EB-2 requirement for advanced degree if pursuing a chemistry-related endeavor.

• Generally, for those with a master’s degree or higher: For professions that do not require a degree in a specific field, for purposes of NIWs USCIS generally interprets the person’s specialty as related to the proposed endeavor. Interdisciplinary professionals or entrepreneurs should focus on careful alignment between educational background and proposed endeavors. This may mean petitioners who seek employment in a field unrelated to their academic background will face additional challenges.

2. Evidence of Substantial Merit and National Importance

• General claims of job creation or economic benefit are insufficient. The update emphasizes that the general importance of the profession would not alone be sufficient to demonstrate national importance in the context of a National Interest Waiver request.

• The update clarifies that a person’s work must show broader benefits beyond just helping their employer, even if the employer is a large, national company. To prove “national importance,” the individual must demonstrate how their work impacts a field, region, or the public at large. For example, developing a drug may meet this standard if it shows potential public health benefits, not just company profits. Similarly, creating technology or processes must show widespread use or influence beyond one company’s needs. This indicates upcoming challenges for petitioners whose evidence for national importance is limited in scope to their current employers and clients. Without evidence of broader impact, work done solely for an employer or its clients is unlikely to qualify.

• Overall petitioners must provide evidence showing the endeavor’s specific benefits to a field, region, or public interest. Evidence should include detailed project descriptions, potential impacts, and corroboration through external sources such as letters from experts or industry stakeholders.

• Clients must articulate a clear narrative connecting their qualifications, proposed endeavors, and broader societal or economic benefits.

3. Evidence the Person is Well Positioned to Advance the Proposed Endeavor

• The previous guidance explicitly included both business plans and letters as evidence to meet this second prong. The update indicates USCIS has de-emphasized reliance on letters of support and business plans, qualifying that these forms of evidence “should be supported by other independent evidence.”

4. Evidence that On balance, it Would be Beneficial to the U.S. to waive the job offer….

• Claims related to labor shortages are insufficient unless accompanied by evidence of broader national importance. This is re-stated multiple times in the Update.

5. Other: Enhanced Guidance for Entrepreneurs

• General claims about economic benefits or job creation are not enough for an entrepreneur to qualify for a national interest waiver. For example, simply opening a consulting firm or starting a business in a generally important industry does not demonstrate “national importance.”

• To strengthen a petition, entrepreneurs should show a proven track record of success tied to a detailed plan for future achievements. This includes evidence of specific steps already taken, such as generating interest from customers or investors, and supporting data on market potential, job creation, and revenue growth. A strong case ties the endeavor closely to the entrepreneur’s background and expertise, backed by measurable results and well-substantiated forecasts.

Recommendations for Your Cases

1. Define the Nexus Between Education, Experience, and Endeavor: Ensure that the petition clearly establishes the relationship between your qualifications and the proposed endeavor.

2. Provide Detailed Supporting Evidence: Clients should focus on building a comprehensive evidentiary package, combining qualitative narratives with quantifiable metrics (e.g., patents, publications, awards, or job creation data). Include comprehensive career statements, detailed business plans, and corroborative evidence such as contracts, investor interest, or relevant achievements.

3. Demonstrate Widespread Impact: Highlight the broader implications of your endeavor, beyond your employer or immediate field, to meet the national importance standard.

4. Tailor Evidence for Entrepreneurs and STEM Professionals: Entrepreneurs should substantiate their claims with metrics like job creation, market growth, or technological innovation. STEM professionals should align their endeavors with emerging technologies or national security interests.

Conclusion

The USCIS policy update introduces critical clarifications that demand precision in defining qualifications, endeavors, and impacts for NIW petitions. Our tailored approach will ensure that your petitions align with the updated standards while presenting compelling evidence to maximize approval likelihood.

Please contact us for a free evaluation of your case under the updated guidance.