USCIS Issues Key Clarifications on EB-2 NIW Eligibility in New 2025 Policy Memo
On January 15, 2025, USCIS released a significant policy update clarifying eligibility criteria for EB-2 National Interest Waiver (NIW) petitions. This new guidance, now part of Volume 6 of the USCIS Policy Manual, offers detailed instructions on how officers should assess EB-2 NIW petitions, especially for advanced degree professionals, individuals of exceptional ability, STEM workers, and entrepreneurs.
- Threshold Requirement: EB-2 Qualification First
USCIS reaffirmed that petitioners must first demonstrate the individual qualifies under the EB-2 classification before the agency evaluates the national interest waiver itself. This means the person must either hold an advanced degree or qualify as someone with exceptional ability in sciences, arts, or business.
An advanced degree alone is not enough—the occupation associated with the proposed endeavor must be a “profession” that typically requires at least a bachelor’s degree. For example, a person with a Ph.D. in engineering proposing an engineering research endeavor may qualify, but someone with the same credentials opening a bakery will likely not, because the occupation of baker doesn’t require a degree for entry. Similarly, if a petitioner is relying on a bachelor’s degree plus five years of progressive experience, the experience must be in the same specialty.
- Clarified Standards for Exceptional Ability
Applicants using the exceptional ability route must meet at least three of six regulatory criteria and pass a final merits determination showing they possess expertise significantly above what is normally encountered in their field. Crucially, the person’s exceptional ability must be tied directly to their proposed endeavor. Someone with exceptional ability in computer science proposing a computer science–based project may qualify—but if the project is unrelated, that disconnect can lead to denial.
- The Three-Prong Test for NIW Eligibility
The USCIS memo builds on the framework from Matter of Dhanasar and provides further detail on the three-prong test used in NIW adjudications.
Substantial Merit and National Importance
The proposed endeavor must be more than generally valuable—it must have broader implications for a field, region, or the public. Petitioners should describe specific goals and impacts of their proposed work, not just general duties or job titles. For instance, general teaching work or owning a business, by itself, does not satisfy the national importance standard unless it has broader implications, such as improving public health, supporting economic development, or contributing to technological advancement.
Well-Positioned to Advance the Endeavor
This prong focuses on the individual. Petitioners must provide evidence of prior success, educational background, specific plans for the endeavor, and indicators of future potential such as support from customers, investors, or institutions. Business plans are helpful but must be supported by documentation such as contracts, patents, media recognition, or investment.
Waiver of the Job Offer is Beneficial to the U.S.
USCIS must find that waiving the job offer and labor certification provides a greater benefit to the nation than requiring it. This might apply in cases where the petitioner’s work is urgent, difficult to fill through traditional hiring, or holds high national value. Petitioners should show why their work cannot be adequately evaluated through the standard labor certification process and why their contributions merit an exception.
- Special Emphasis on STEM Fields
USCIS placed renewed emphasis on the national importance of work in STEM fields, particularly in areas like artificial intelligence, cybersecurity, and quantum technologies. Officers are encouraged to refer to federal lists of critical and emerging technologies when evaluating STEM-related petitions. STEM professionals whose work supports U.S. competitiveness or national security, and who are well positioned to execute that work, are considered strong candidates under the updated guidance.
- More Stringent Criteria for Entrepreneurs
Entrepreneurs face heightened scrutiny. USCIS made clear that general statements about job creation or economic value will not be enough. Instead, strong petitions must include specific evidence of the petitioner’s role, traction the business has gained, investment secured, or measurable economic impact. USCIS also clarified that there’s no one-size-fits-all business model—startups and entrepreneurs are evaluated on the totality of evidence, including innovation, market demand, and leadership.
Conclusion
This new USCIS guidance signals a more consistent, evidence-driven approach to NIW adjudications. Petitioners must clearly link their qualifications to a well-defined endeavor that benefits the United States. Whether you’re a researcher, founder, or skilled professional, a persuasive petition must align the person’s background, proposed work, and national interest. Strong supporting evidence and a cohesive narrative are now more critical than ever.
