The EB-2 National Interest Waiver (NIW) has long been a valuable pathway for foreign professionals and individuals of exceptional ability seeking permanent residence in the United States without the requirement of employer sponsorship.

While the regulations and precedent decisions governing EB-2 NIW remain unchanged, USCIS has adopted a more restrictive interpretation of the relevant law. This shift is reflected in newly released USCIS FY 2024 statistics, showing a sharp drop in approvals to just 43.31%—a significant decline from previous years. On January 15, 2025, USCIS made updates to its Policy Manual reflecting its more restrictive interpretation of the EB-2 NIW category. This article provides an in-depth look at these new changes, their impact, and what petitioners should consider when determining their elibility for the EB-2 NIW category.

Understanding EB-2 NIW Eligibility

To qualify for an EB-2 NIW, applicants must satisfy two key elements:

1. Qualify under the EB-2 category as either an advanced degree professional or a person of exceptional ability.

2. Meet the National Interest Waiver (NIW) criteria, which waive the requirement of a labor certification if the applicant’s work is deemed of national importance to the United States.

1. EB-2 Advanced Degree Professional

To qualify as an advanced degree professional, the applicant must:

• Hold an advanced degree (master’s or higher) from a U.S. institution or its foreign equivalent, or

• Possess a bachelor’s degree plus at least five years of progressive experience in their field.

• The offered position must be a professional occupation, i.e. the occupation must require the minimum of a bachelor’s degree for entry into the field.

  Stricter Interpretation of Advanced Degree and Professional Qualification Requirements

  • USCIS now requires a clearer nexus between the person’s educational background, work experience, and proposed endeavor.

  • A bachelor’s degree followed by five years of progressive post-baccalaureate experience will only qualify if both the degree and experience are explicitly tied to the same field.

  • Merely holding an advanced degree is insufficient without demonstrating that the occupation itself must require the minimum of a bachelor’s degree.

  Implications:

  • Foreign nationals with degrees in one field but experience in another may face RFEs or denials unless they can establish a strong relationship between their background and their intended work.

  • Professionals seeking NIW for interdisciplinary roles will need to present compelling evidence of the synergy between their qualifications and proposed endeavor.

2. EB-2 Exceptional Ability

Alternatively, an applicant may qualify under exceptional ability by demonstrating a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. This requires meeting at least three of the following criteria:

• An official academic record related to their field.

• Letters from employers documenting at least 10 years of full-time experience.

• A license to practice in their profession.

• Evidence of commanding a high salary in relation to others in the field.

• Membership in professional associations.

• Recognition for significant contributions in their industry.

• Other comparable evidence.

Meeting three criteria alone does not guarantee eligibility under the exceptional ability criterion. USCIS applies a two-step analysis: first, determining if the beneficiary meets at least three of the six regulatory criteria, and second, conducting a final merits determination to assess whether the beneficiary's expertise is significantly above the norm.

Under the new interpretation, USCIS is now scrutinizing whether the exceptional ability is directly related to the proposed endeavor, making it more difficult to qualify under this category.

New Interpretations of the National Interest Waiver

USCIS adjudicates EB-2 NIW petitions based on a three-prong test, which has recently been subject to a stricter interpretation:

Prong 1: The Proposed Endeavor Has Substantial Merit and National Importance

• Focus of the specific “endeavor” as opposed to the occupation in general. Instead of merely describing the general responsibilities of your profession, you should provide details about the specific work you plan to undertake. When explaining your endeavor, present it clearly and concisely, describing the specific projects and goals, and the area of the field in which you will work. Additionally, clarify whether you will pursue it through employment with a particular company or by other means.

• The benefits your endeavor provides to a specific employer—even one with a nationwide presence—are not enough to establish national importance. Petitioners must show that their proposed work has broad implications beyond benefiting a single employer or a localized community.

• What matters is whether your individual work has broader implications, such as advancing your field, impacting a region, or benefiting the public at large.

• Key change: USCIS has been rejecting petitions where applicants simply highlight the importance of their occupation without demonstrating specific national impact.

  • Examples:

  • A classroom teacher will not qualify under this prong unless they can prove broader educational reforms or contributions beyond their school or district.

  • Working in a field with a labor shortage or offering consulting in that area alone does not establish national importance.

  • Developing a drug may qualify if the focus is on public health benefits rather than company profits.

  • Creating technology for a company isn’t enough; broader industry impact, widespread adoption, or innovation in manufacturing must be shown.

  • A software engineer working for the company’s various clients needs evidence of a larger impact beyond employer benefits.

  • Starting a consulting firm or business in a nationally important industry doesn’t automatically establish national importance.

• What You Should Do: Clearly outline the scope of your work, providing quantifiable evidence of its impact on a national or industry-wide scale.

Prong 2: The Applicant is Well-Positioned to Advance the Endeavor

• USCIS now demands more concrete evidence of the applicant’s ability to carry out their proposed work.

• Key change: General work experience does not automatically prove that an applicant is well-positioned to implement their endeavor.

• A strong petition should include specific details about your record of success with similar endeavors and past achievements and and how they indicate a high likelihood of continued success.

• The updated Policy Manual highlights the importance of measurable indicators, such as projected revenue and job creation, to demonstrate the potential impact of your endeavor on the U.S. economy.

• Examples:

  • STEM Ph.D. as a Positive Factor: USCIS views a Ph.D. in a STEM field tied to critical or emerging technologies as a strong factor in proving an applicant is well-positioned to advance their endeavor, especially if it contributes to U.S. competitiveness or national security.

  • General Work Experience vs. Specialized Expertise: Having general experience in a field is not enough to establish expertise for a consulting business. For example, a former bank teller or accounts manager may struggle to prove they are well-positioned to advise banks nationwide on customer relations.

  • Entrepreneurial Endeavors: A strong petition should clearly connect past success to a viable business plan, outlining concrete steps taken and market demand. USCIS expects supporting evidence like customer interest, investor backing, and projections on market size, job creation, and revenue growth.

• What You Should Do: Provide a clear roadmap of your endeavor, including:

  • Past accomplishments proving your expertise.

  • Letters of support from industry experts. While expert letters remain acceptable, they must come from individuals with direct knowledge of the applicant’s accomplishments and providing specific examples of how the person is well positioned to advance the proposed endeavor and should be substantiated by independent evidence.

  • Business plans should be backed by supporting evidence, such as signed contracts, funding commitments, or clear indicators of customer demand.

  • Evidence of investment, funding, or collaborations.

Prong 3: Waiving the Job Offer and Labor Certification is Beneficial to the U.S.

• USCIS is now more restrictive in granting waivers, even if an applicant’s field faces labor shortages. Merely proving a shortage of U.S. workers in an occupation is not sufficient.

• Demonstrate Why Labor Certification Is Impractical: Explain why the standard labor certification process would not work in your case. This could be because your expertise is highly specialized, making it difficult for an employer to find a U.S. worker with equivalent skills, or because you are an entrepreneur or self-employed innovator who cannot secure a traditional job offer.

• Show the Unique Benefit of Your Contributions: Even if U.S. workers are available in your field, highlight how your work would provide exceptional value to the country. For example, if your endeavor could drive significant economic growth, create jobs, or contribute to a critical industry, emphasize these impacts.

• Justify Any Urgency: If your work addresses an immediate national need—such as developing critical technology, responding to a pressing public health issue, or advancing innovation in a way that requires immediate action—explain why the labor certification process would delay or hinder its benefits.Example: An entrepreneur establishing a consulting firm does not qualify unless they show their business directly benefits national competitiveness or economic revitalization.

• What You Should Do: Emphasize:

  • Your work is highly specialized and unique, making a traditional labor market test infeasible.

  • Your work has an urgent national impact, such as emerging STEM fields or public health advancements.

  • Your endeavor’s benefits to the U.S. outweigh the need for a standard labor market test.

Strategies to Strengthen Your EB-2 NIW Petition

✅ Clearly Define Your Proposed Endeavor – Avoid vague statements and focus on measurable contributions.

✅ Provide Strong Supporting Evidence – Submit letters of support, industry recognition, patents, and funding documentation.

✅ Demonstrate Economic or National Security Benefits – Show how your work contributes to U.S. competitiveness, innovation, or critical infrastructure.

✅ Use Expert Testimony – Letters from government agencies, research institutions, or industry leaders can significantly strengthen your case.

✅ Consult an Immigration Attorney – Given the stricter adjudication trends, having professional guidance can make a crucial difference.

Final Thoughts

The USCIS’s new restrictive approach to EB-2 NIW applications underscores the need for a well-prepared, evidence-backed petition. While the pathway remains open, applicants must adapt to the higher evidentiary standards and be strategic in proving their national impact. If you are considering an EB-2 NIW petition, working with an experienced immigration attorney can help you navigate these complexities and maximize your chances of approval.

📩 Need help with your EB-2 NIW application? Contact us today!