U.S. Citizenship and Immigration Services has updated its policy guidance to clarify how we evaluate eligibility for employment-based second preference (EB-2) classification for immigrant petitions filed with a national interest waiver request. (NIW).
Typically, an employer files an EB-2 petition using Form I-140, Immigrant Petition for Foreign Worker, after obtaining a certification of labor status from the Department of Labor. USCIS, however, could waive the requirement for an offer of employment, and therefore certification of employment status, if it is in the interest of the United States. Additionally, people seeking to obtain an NIW can file a petition themselves.
A petitioner seeking an NIW must first demonstrate that he or she qualifies for the underlying EB-2 classification as a member of the professions requiring an advanced degree or as a person of extraordinary ability in the sciences, arts, or business.
The new guidelines explain how, in cases of professionals with advanced degrees who wish to obtain an NIW, we consider whether the occupation in which the applicant intends to advance is a profession, and, if applicable, whether the five years of post-degree experience baccalaureate (bachelor’s degree) is in the specialty. The guidelines also address how, for people with extraordinary abilities, those extraordinary abilities should relate to the work proposed as part of the NIW petition. We determine the relationship of the extraordinary ability to the proposed work on a case-by-case basis, taking into consideration any shared set of skills, knowledge or experience.
These new guidelines build on a previous Policy Manual update that discussed unique considerations for people with advanced degrees in science, technology, engineering, and mathematics (STEM) fields and employers.
These guidelines, contained in Volume 6, Part F, Chapter 5 of the Policy Manual, are effective immediately and apply to petitions pending or filed on or after the date of publication. The guidelines contained in the Policy Manual govern and supersede any previous related guidelines. For more information and tips on filing, see the Employment-Based Immigration: EB-2 Second Preference page.
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