U.S. Citizenship and Immigration Services is updating its policy guidance to clarify how we evaluate eligibility for the second preference employment-based (EB-2) classification for immigrant petitions filed with a request for a national interest waiver (NIW).
An employer generally files an EB-2 petition using Form I-140, Immigrant Petition for Alien Workers, after obtaining a labor certification from the Department of Labor. USCIS, however, can waive the requirement of a job offer and, thus, the labor certification if it is in the interest of the United States. In addition, individuals seeking a NIW may file a petition.
A petitioner seeking an NIW must first demonstrate that they qualify for the underlying EB-2 classification as either a member of the professions holding an advanced degree or an individual of exceptional ability in the sciences, arts, or business.
The new guidance explains how, for advanced degree professionals seeking an NIW, we consider whether the occupation in which the petitioner proposes to advance an endeavor is a profession and, if applicable, whether the 5 years of post-bachelor experience is in the specialty. The guidance also addresses how, for persons of exceptional ability seeking an NIW, that exceptional ability must relate to the endeavor proposed as part of the NIW request. We determine the relationship of exceptional ability to the proposed endeavor on a case-by-case basis, considering any shared skill, knowledge, or expertise.
Advanced Degree Professionals
- The beneficiary must be a member of the profession holding an advanced degree or a foreign equivalent degree.
- The position certified in the underlying permanent labor certification application or Schedule A application must require a professional holding an advanced degree or the equivalent.
- The beneficiary must have had the advanced degree or its equivalent on the date the permanent labor certification application was filed and must have met all the requirements for entry into the proffered position.
Mere possession of an advanced degree or equivalent is insufficient to establish a beneficiary’s eligibility for this classification. The petitioner must also demonstrate that the position certified in the underlying permanent labor certification application or set forth on the Schedule A application requires a professional holding an advanced degree or the equivalent. The petitioner must demonstrate that the position and the industry require typically that the position be filled by a person holding an advanced degree.
Where the position requires multiple credentials combined with experience, the issue is not whether a combination of more than one of the foreign degrees or credentials is comparable to a single U.S. bachelor’s degree or an advanced degree but instead that the minimum requirements for the position in the permanent labor certification meet the definition of an advanced degree.
This requirement has resulted in a problem involving a petition filed on behalf of registered nurses. Although many such nurses possess advanced degrees, they are filling nursing positions in the United States that generally do not require them.
Exceptional Ability
- The beneficiary must have a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
- The beneficiary must meet at least three of the following criteria:
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- Official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other learning institution relating to exceptional ability.
- Letters documenting at least 10 years of full-time experience in the occupation.
- A license to practice the profession or certification for the profession or occupation.
- Evidence that the beneficiary has commanded a salary or other remuneration for services demonstrating exceptional ability.
- Membership in professional associations.
- Recognition for achievements and significant contributions to the industry or field by peers, government entities, and professional or business organizations.
- Other comparable evidence of eligibility is also acceptable, e.g., other EB-1A criteria.
Meeting the minimum requirement by providing at least three types of initial evidence does not establish that the beneficiary meets the requirements for exceptional ability classification. Officers will also consider the quality of the evidence in its entirety to determine if the beneficiary has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business by a preponderance of the evidence.
Professional Athletes
For purposes of this classification, the term professional athlete means a person who is employed as an athlete by a team that is a member of an association of six or more professional sports teams whose total combined revenues exceed $10,000,000 per year if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or any minor league team that is affiliated with such an association.
Professional athletes who meet the criteria for exceptional ability in the arts may qualify for the exceptional ability category.
National Interest Waiver of Job Offer
- The person’s proposed endeavor has both substantial merit and national importance.
- The person is well-positioned to advance the proposed endeavor.
- Waiving the job offer and, thus, the permanent labor certification requirements would benefit the United States.
Qualification for the EB-2 classification as a member of the professions holding an advanced degree or as a person of exceptional ability does not automatically mean that the person qualifies for a national interest waiver. Regardless of whether the person is an advanced degree professional or demonstrates exceptional ability, the petitioner seeking a waiver of the job offer must establish eligibility for the classification and indicate that the waiver itself is in the national interest.
Specifically, in the exceptional ability context, the INA requires that all petitions for a person of exceptional ability show that the person’s presence in the United States would substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future. Even if the petitioner demonstrates such exceptional ability, if the petitioner is seeking a waiver of the job offer, the petitioner must also demonstrate the additional requirement of national interest.
However, Neither the INA nor the regulations define “national interest.” The petitioner must establish that waiving the job offer requirement is in the national interest. USCIS considers every petition on a case-by-case basis.
First Prong: The Proposed Endeavor has both Substantial Merit and National Importance
When reviewing the proposed endeavor, officers will determine whether the evidence presented demonstrates, by a preponderance of the evidence, that it has substantial merit and national importance. The term “endeavor” is more specific than the general occupation; a petitioner must provide details on what the occupation typically involves and what work the person proposes to undertake expressly within that occupation.
The endeavor’s merit may be demonstrated in business, entrepreneurship, science, technology, culture, health, or education. The merit of the endeavor ” may be established without immediate or quantifiable economic impact,” and “endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.”
Second Prong: The Person is Well Positioned to Advance the Proposed Endeavor
In evaluating whether the person is well positioned to advance the endeavor, USCIS considers factors including, but not limited to:
- The person’s education, skills, knowledge, and record of success in related or similar efforts.
- A model or plan that the person developed or played a significant role in creating for future activities related to the proposed endeavor.
- Any progress towards achieving the proposed endeavor and
- The interest or support garnered by the person from potential customers, users, investors, or other relevant entities or persons.
Evidence that may demonstrate that the person is well-positioned to advance a proposed endeavor includes, but is not limited to:
- Degrees, certificates, or licenses in the field.
- Patents, trademarks, or copyrights developed by the person.
- Letters from experts in the person’s field describe the person’s past achievements and provide specific examples of how the person is well positioned to advance the person’s endeavor.
- Published articles or media reports about the person’s achievements or current work.
- Documentation demonstrating a strong citation history of the person’s work or excerpts of published articles showing positive discourse around, or adoption of, the person’s work.
- Evidence that the person’s work has influenced the field of endeavor.
- A plan describing how the person intends to continue the proposed work in the United States.
- A detailed business plan or other description, along with any relevant supporting evidence, when appropriate.
- Correspondence from prospective or potential employers, clients, or customers.
- Documentation reflecting feasible plans for financial support (see below for a more detailed discussion of evidence related to financing for entrepreneurs);
- Proof that the person has received investment from U.S. investors, such as venture capital firms, angel investors, or start-up accelerators, and that the amounts are appropriate to the relevant endeavor.
- Copies of contracts, agreements, or licenses showing the potential impact of the proposed endeavor.
- Letters from government agencies or quasi-governmental entities in the United States demonstrating that the person is well positioned to advance the proposed endeavor (see below for a more detailed discussion of supporting evidence from interested government agencies and quasi-governmental entities);
- Proof that the person has received awards or grants or other indications of relevant non-monetary support (for example, using facilities free of charge) from federal, state, or local government entities with expertise in economic development, research, and development, or job creation; and
- Evidence demonstrating how the person’s work is being used by others, such as, but not limited to:
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- Contracts with companies using products that the person developed or assisted in developing.
- Documents showing technology that the person invented or contributed to inventing and how others use that technology; and
- Patents or licenses are for innovations a person develops, with documentation showing why the patent or license is significant to the field.
In each case, officers must consider the totality of circumstances to determine whether the preponderance of evidence establishes that the person is well-positioned to advance the proposed endeavor.
Third Prong: On balance, it would be beneficial to the United States to waive the job offer and, thus, the permanent labor certification requirements
While Congress sought to further the national interest by requiring job offers and labor certifications to protect U.S. workers, It also recognized that in certain instances, the national interest is better served by waiving the job offer and, thus, the labor certification requirement. In such cases, a national interest waiver outweighs the benefits inherent to the labor certification process, which primarily focuses on a geographically limited labor market.
This last prong requires the petitioner to demonstrate that the factors in favor of granting the waiver outweigh those that support the requirement of a job offer and, thus, a labor certification, which is intended to ensure that the admission of foreign workers will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.
When evaluating the third prong and whether the United States may benefit from the person’s entry, regardless of whether other U.S. workers are available (as well as other factors relating to prong three discussed above, such as urgency), USCIS considers the following combination of facts contained in the record to be a decisive positive factor:
- The person possesses an advanced STEM degree, particularly a Ph.D.
- The person will be engaged in work furthering a critical and emerging technology or other STEM area vital to U.S. competitiveness and
- The person is well-positioned to advance the proposed STEM endeavor of national importance.
The benefit is incredibly weighty, where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness, or the petition can be supported by letters from interested U.S. government agencies.
Contact an experienced EB-2 NIW attorney at Litwin and Smith today at (650) 588-7100.
For more information, see: https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5