Navigating the New National Interest Waiver (NIW) Standards

On January 15, 2025, USCIS released the following information: "USCIS Updates Guidance on EB-2 National Interest Waiver Petitions."  This announcement was issued to inform the public that USCIS updated its policy guidance to clarify the criteria for evaluating eligibility under the second preference employment-based (EB-2) classification for immigrant petitions submitted with a request for a National Interest Waiver (NIW).

This article summarizes the changes to the policy guidance and provides information on what evidence should be submitted to obtain an approved NIW petition.

Degree and experience need to be in the field of endeavor

In order to qualify for the EB-2 category, an applicant needs to possess an advanced degree.  This is defined as a master’s degree or a bachelor’s degree with five (5) years of experience.  There is an alternative to qualify under “exceptional ability,” but this topic is beyond the scope of the article.

In order for the NIW to be approved in the EB-2 category, the position as well as the industry needs to require this advanced degree for this type of job.

The applicant's degree and experience need to be in his/her field.  This sounds straightforward but it can get tricky.  For instance, in the case of a software developer who has been working in the IT field for many years but is now operating a startup to develop an app that is in the national interest of the U.S., an explanation should be included to clearly explain how his/her education and experience align with the proposed endeavor. Even if the applicant's degree is in a related but not identical field, it is important to demonstrate how their academic background, combined with years of professional experience, has equipped them with the necessary expertise to successfully carry out the proposed project.

What is a "Proposed Endeavor" in the NIW Context?

In a National Interest Waiver (NIW) petition, an applicant's proposed endeavor is the professional work or business activity they plan to pursue in the United States. To qualify, an applicant must demonstrate that their work has substantial merit and national importance—meaning it benefits the U.S. in a way that justifies waiving the usual job offer and labor certification requirements.

A national endeavor is not just about having a job in a specialized field; it must go beyond personal career success and positively impact the U.S. on a broader scale. This could mean making advancements in science and technology, addressing public health challenges, contributing to economic growth, or leading projects with wide-ranging societal benefits. An applicant's work should extend beyond a single company and demonstrate potential to influence an entire industry, improve policies, or solve significant national problems.

What is “National Interest”?

"National Interest" is not defined in the regulations, so it is left to broad interpretation by USCIS, which has great discretion in its adjudication of NIW petitions.  Broadly, it means that a “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.”

Simply working in an important field or being employed by a company engaged in nationally significant work is not enough to qualify for an NIW. USCIS is not just looking at the value of the applicant's industry—they are evaluating individual contributions and how an applicant's work specifically advances the U.S. national interest. An applicant must clearly demonstrate that their expertise, research, innovations, or leadership go beyond routine job duties and have a tangible impact on the field as a whole. This means providing evidence of an applicant's unique role in key projects, how their work has influenced policy, technology, or economic growth, and why their continued efforts are essential to the U.S. Without proving that an applicant's personal contributions are nationally significant, USCIS may determine that the petition does not warrant a waiver of the labor certification requirement.

There are 3 prongs to the National Interest Waiver

USCIS may grant a national interest waiver as a matter of discretion if the petitioner demonstrates eligibility by a preponderance of the evidence, based on the following three prongs:

1. The person’s proposed endeavor has both substantial merit and national importance;
2. The person is well positioned to advance the proposed endeavor; and
3. On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

Prong 1, Part 1: The person’s proposed endeavor has substantial merit

To meet the "substantial merit" requirement, the endeavor must be in a field of high value to the U.S. (such as technology, health, business, education, environment, etc.) and contribute significant advancements.

Prong 1, Part 2: The person’s proposed endeavor has national importance

This is the key area where USCIS often issues a Request for Evidence (RFE) or denies petitions. Simply being in a field of high value to the U.S. with substantial merit does not automatically mean that a proposed endeavor holds national importance.

Key Issues USCIS Identified in Recent RFEs:

Lack of clear explanation of national impact, which includes:

• USCIS often challenges whether the applicant’s work extends beyond their immediate employer or organization.
• USCIS often questions whether the work will directly and broadly impact the U.S. economy, health, technology, or national interests.
• Not every entrepreneur qualifies for a National Interest Waiver.  While USCIS decides each case on its merits, broad assertions regarding general benefits to the economy and potential to create jobs will not establish an entrepreneur’s qualification for a National Interest Waiver.
• Proposing to work in an occupation with a national shortage or serve in a consulting capacity for others seeking to work in an occupation with a national shortage alone, is also insufficient.
• Benefits to a specific employer alone, even to an employer with a national footprint, are not sufficiently relevant to the question of whether a person’s endeavor has national importance. At issue is whether the petitioner can demonstrate that the person’s own individual endeavor stands to have broader implications, such as for a field, a region, or the public at large.
• As an example given by USCIS, a software engineer adapting their employer’s code for various clients will have difficulty demonstrating the national importance of that endeavor, absent additional broader impacts supported by specific evidence.

Insufficient Evidence of Industry Recognition and Adoption

If USCIS sees only internal employer support and not independent industry recognition, they may argue that the work does not rise to the level of national importance.

Failure to Show Practical Implementation and Influence

• USCIS often asks for proof that the work is already being implemented, cited, or used in the field.
• They may request evidence of government, industry, or academic reliance on the applicant’s work.

Prong 2: 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 degree in and of itself, however, is not a sufficient basis to determine that a person is well positioned to advance the proposed endeavor;
• Evidence of a detailed proposal or plan that the person developed, or played a significant role in developing, 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.

USCIS has provided the following list as a non-exhaustive list of examples of evidence it is looking for:

• Degrees, certificates, or licenses in the field;
• Patents, trademarks, or copyrights developed by the person;
• 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;
• Correspondence from prospective or potential customers, users, investors, or other relevant entities;
• Documentation reflecting feasible plans for financial support.  For an entrepreneur, USCIS requests evidence to support how the person has anticipated relevant metrics such as market size and share, job creation, and revenue growth;
• Evidence 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;
• Evidence 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:
  • 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 for innovations the person developed with documentation showing why the patent or license is significant to the field.

Prong 3: On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements

In establishing eligibility for the third prong, petitioners may submit evidence relating to one or more of the following factors:

• Whether, in light of the nature of the person’s qualifications or proposed endeavor, it would be impractical to obtain a labor certification;
• The benefit to the United States from the person’s prospective contributions, even if other U.S. workers were also available; and
• The national interest in the person’s contributions is sufficiently urgent to warrant forgoing the labor certification process, such as a time-sensitive public health or safety benefit offered by the endeavor.

Other more specific suggestions include:

• Whether the labor certification process may prevent an employer from hiring a person with unique knowledge or skills exceeding the minimum requirements standard for that occupation, which cannot be appropriately captured by the labor certification process;
• Whether the person’s endeavor has the potential to generate considerable economic impact consistent, for example, with economic revitalization; and
• Whether the person’s endeavor may lead to potential job creation. A national labor shortage in the person’s occupation would not, by itself, satisfy this third prong.

How to Present Your Proposed Endeavor to USCIS

To provide USCIS with the necessary information—especially the key details described in this article—we recommend that anyone filing an NIW petition prepare a well-structured business or professional plan. This plan can be drafted by the applicant or by professional firms that specialize in NIW petitions. 

A strong plan should clearly outline:

• Applicant's role, industry, and specific goals in the U.S.
• The impact of their work on the U.S. economy, health, security, or technology.
• Data, statistics, or industry reports demonstrating the importance of your contributions.
• A five-year financial plan detailing how an applicant will fund their endeavor.
• If starting a business, an overview of market demand, financial projections, and growth potential.

Additionally, securing letters of support from industry experts is crucial. These letters should come not only from colleagues but also from independent professionals, industry leaders, or government officials who can attest to the national importance of an applicant's work. The letters should emphasize how their contributions benefit the U.S. as a whole, rather than just one employer.

Conclusion

Successfully obtaining an EB-2 National Interest Waiver (NIW) requires more than just working in a valuable field—it demands a clear demonstration of how an applicant's specific contributions serve the national interest of the United States. By understanding the three-prong framework USCIS uses to evaluate NIW petitions and strategically presenting evidence of their expertise, impact, and feasibility of success, applicants can strengthen their case. A well-structured business or professional plan, along with strong letters of support, can significantly enhance an application’s chances of approval. As USCIS continues refining its policy guidance, staying informed and preparing a compelling petition with detailed supporting evidence will be essential for success.