USCIS Policy Manual Update and Recent Trends in EB-2 National Interest Waiver Adjudications

The National Interest Waiver (“NIW”) is a streamlined pathway to permanent residence for foreign nationals whose current or prospective work is in the national interest and therefore merits a waiver of the labor certification and job offer that is normally required in employment-based permanent residence cases. In January 2022, USCIS updated its policy manual with guidance that led more foreign entrepreneurs and foreign nationals with advanced STEM degrees to pursue permanent residence in the United States through NIWs. In addition, the processing times for the standard employer-sponsored permanent residence process (PERM Labor Certification) have dramatically increased over the past few years. As a result, the number of NIW petitions received by USCIS has tripled. USCIS has begun issuing a higher percentage of requests for evidence and denials for NIWs, and in January 2025, USCIS updated guidance in their policy manual that raises the degree of difficulty to qualify for an NIW. This article will summarize the advantages of the NIW pathway to permanent residence, USCIS’s latest guidance, and trends in adjudication.

National Interest Waiver (NIW) v. PERM Timeframes

The standard process for foreign nationals to obtain permanent residence through employment is PERM Labor Certification. PERM is a multi-step, lengthy process in which the employer obtains the prevailing wage for a position in a particular location, conducts an extensive recruitment process, and then submits a Form ETA-9089 (the “PERM”) to the U.S. Department of Labor (“DOL”) if there are no willing, able, qualified, or available U.S. applicants for the position. Due to backlogs and longer processing times, PERM timelines have increased to two years in many cases. These steps do not mark the end of the permanent residence process. The PERM certification simply provides the basis for the employer to file an I-140 immigrant petition for a foreign worker, which if approved, allows the foreign national to apply to adjust their status to permanent residence.

Amidst the multiple procedures and prolonged processing times involved in the PERM process, the NIW has become more appealing. The NIW involves a shorter timeframe for obtaining an approved I-140 immigrant petition, as it does not require a Prevailing Wage Determination, labor market test, or ETA-9089 filing with DOL. Moreover, last year, USCIS began offering “premium” or expedited processing of NIW immigrant petitions. For an additional fee, USCIS will issue a decision on an NIW petition within 45 business days or less

Criteria to Qualify for a National Interest Waiver

To qualify for an NIW, the individual must hold an advanced degree (master’s degree or higher) or be a person of exceptional ability in a particular field. A bachelor’s degree followed by at least five years of progressive experience in an individual’s specialty is considered the equivalent of an advanced degree. The foreign national must show that their prospective work is in the national interest and therefore merits a waiver of the job offer and labor certification requirements. In addition to this, the foreign national must satisfy a three-prong test that was laid out in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). The foreign national must demonstrate that their prospective work in the United States has both substantial merit and national importance, they are well positioned to undertake this work based on their education and experience, and on balance, it would be beneficial to the United States to waive the job offer and PERM labor certification requirements.

National Interest Waivers for Foreign Nationals in STEM Fields

The NIW has become an attractive alternative pathway to a green card for foreign nationals who work in STEM fields because USCIS’s policy manual recognizes the need to attract and retain foreign nationals working in STEM fields. It explicitly emphasizes the national importance of fostering progress and maintaining competitiveness in critical and emerging technologies, particularly those that support the United States’ national security or enhance the United States’ economic prosperity.

The USCIS policy manual reflects a wider recognition of the shortage of Americans with degrees in STEM fields, the detrimental impact this can have on the United States’ economic development and national security, and the need to attract and retain foreign nationals with specialization in these fields to meet the demands of the labor market. According to the U.S. Bureau of Labor Statistics, STEM occupations are projected to grow 10.8% by 2032, more than four times faster than non-STEM occupations. An estimated 3.85 million additional jobs requiring proficiency in technical fields will be created by the end of 2030. However, of those jobs, 1.4 million jobs risk going unfilled unless the United States can add workers in STEM fields. Recruiting highly qualified foreign nationals can play an important role in mitigating the shortage of STEM professionals in our workforce.

USCIS’s policy manual guidance refers to the Executive Office of the President’s National Science and Technology Council’s Critical and Emerging Technologies list for examples of the types of STEM fields that lend themselves well to an NIW. These fields include Advanced Computing, Advanced Nuclear Energy Technologies, Artificial Intelligence, Autonomous Systems and Robotics, Renewable Energy Generation, and Space Technologies and Systems, among others. Highly educated foreign nationals furthering STEM fields in academic or industry settings can be ideal applicants for the NIW.

National Interest Waivers for Entrepreneurs

The USCIS policy manual states that in addition to foreign nationals with advanced degrees in STEM fields, the United States also seeks to attract and retain foreign entrepreneurs who develop businesses or inventions that are in the national interest. Obtaining a labor certification or a job offer as an entrepreneur may be impossible or impractical, making the NIW a more attractive pathway to permanent residence. Entrepreneurs are subject to the same three-pronged NIW criteria and should be prepared to submit a detailed business plan.

Entrepreneurs can demonstrate that they are well-positioned to advance their proposed endeavor by showing evidence of ownership or a key role in a U.S.-based company, a track record of establishing and leading start-up entities, as well as relevant degrees, licenses, certifications, and patents. Other factors that may demonstrate substantial merit and be well-positioned to develop a U.S.-based company include grants and investments, admission into an incubator or accelerator, and evidence of revenue growth or job creation. Government grants, entrepreneurship in critical and emerging technologies, and job creation in economically depressed areas of the U.S. can serve as effective evidence of national importance.

USCIS January 2025 Policy Manual Updates

In January 2025, USCIS issued an additional NIW policy manual update which indicated that to qualify as a foreign national with an advanced degree, an individual’s intended occupation must now meet the definition of a profession. A profession is defined as one of the occupations listed in section 101(a)(32) of the Immigration and Nationality Act: architects, engineers, lawyers, physicians, surgeons, and teachers, or any occupation that requires at least a U.S. bachelor’s degree or its foreign degree equivalent. This change may negatively impact applicants who work in fields where it is more challenging to demonstrate that a bachelor’s degree is normally required to enter the occupation. If the individual is seeking to qualify based on having a bachelor’s degree and five years of post-bachelor’s degree experience, USCIS will evaluate whether the five years of experience were related to their specialty.

Furthermore, USCIS clarified that demonstrating that there is a national shortage of a particular occupation is not sufficient to show that an individual’s endeavor has national importance. While demonstrating that there is a national shortage in a particular occupation may still be a favorable factor, this should not be the focus of an individual’s NIW petition. Instead, arguments should focus on the national importance and prospective impact of the individual’s particular endeavor. Furthermore, USCIS clarified that broad assertions regarding general benefits to the economy and the potential to create jobs are insufficient to establish an entrepreneur’s qualification for an NIW. Rather, entrepreneurs should demonstrate how their work benefits society. In addition to demonstrating an endeavor’s benefit to societal welfare, economic impact, and technological advancement, USCIS gives significant weight to letters of support from government or quasi-governmental agencies.

Advantages of Self-Sponsorship through a National Interest Waiver

Unlike the PERM, the NIW can be self-sponsored, enabling foreign nationals to submit their immigrant petitions without employer sponsorship. This gives foreign nationals with approved NIWs more agency, independence, and flexibility, as they are not obligated to remain at a particular employer while waiting to obtain permanent residence. By contrast, foreign nationals who pursue a PERM require employer sponsorship, and if currently working for the sponsoring employer, are expected to remain in their current position at their employer for at least 6 months after filing their adjustment of status application or they will lose their permanent residence sponsorship.

Conclusion

Over the past few years, there has been a dramatic increase in the number of NIWs submitted and more recently, USCIS Requests for Evidence and denials in this category have also increased. USCIS has issued recent policy guidance that will in some cases make an NIW approval more difficult. Despite a higher level of scrutiny by adjudicators at USCIS, the NIW pathway remains a good option for entrepreneurs, individuals in STEM fields, and other foreign nationals who can demonstrate that their work is in the national interest. This continues to be a good permanent residence option for physicians and researchers who are advancing public health in the United States and meet the three-prong test described above. Foreign nationals considering filing an NIW petition should consult an experienced immigration attorney.

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