What is EB-2 NIW Green Card?

What is EB-2 NIW Green Card?

EB-2 National Interest Waiver (NIW) is a second preference category of employment-based green card petitions. NIW petitioners are requesting a waiver of the requirements for a job offer, thus a labor certification, because it is in the interest of the United States.

Qualified EB-2 NIW petitioners thus may self-petition without a job offer, U.S. employer’s sponsorship, or a certified Application for Permanent Employment Certification from the Department of Labor (DOL). Such petitioners thus may skip the DOL’s PERM (Program Electronic Review Management) process required under the EB-2 classification. In this blog, we will explain the requirement and specific considerations of the EB-2 NIW classification.

Table of Contents

• Who is Eligible for a Green Card under the EB-2 NIW Category?
  • I. Eligibility Criteria for EB-2 Classification
    • A. Advanced Degree
    • B. Exceptional Ability
  • II. Eligibility Criteria for NIW Classification
    • Three Prongs Requirement for NIW: “Dhanasar Test”
• Specific Considerations for Persons with Advanced Degrees in Science, Technology, Engineering, or Mathematics (STEM) Fields
• Letters from Interested Government Agencies or Quasi-Governmental Entities
• Specific Evidentiary Considerations for Entrepreneurs
• Family of EB-2 Visa Holders

Who is Eligible for a Green Card under the EB-2 NIW Category?

To qualify for the EB-2 NIW green card, petitioners must satisfy the eligibility criteria for the EB-2 and NIW classifications as follows:

I. Eligibility Criteria for EB-2 Classification

To be eligible for the EB-2 classification, the petitioner must be a member of the professions holding advanced degrees or have exceptional ability in the arts, sciences, or business.

A. Advanced Degree

Petitioners may be eligible for the EB-2 classification as individuals who hold advanced degrees if:

• The job they apply for require, at a minimum, an advanced degree or foreign equivalent degree;¹ and

• They are members of the professions holding an advanced degree or foreign equivalent degree.²

What is an “Advanced Degree”?

An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above that of baccalaureate. That is, an advanced degree means master’s degree or higher. USCIS also considers a U.S. baccalaureate degree or a foreign equivalent degree plus 5 years of post-baccalaureate, progressive work experience in the field the equivalent of a master’s degree.

Still, if the job customarily require a doctoral degree, petitioners must have a United States doctorate or foreign equivalent degree. Individuals without a U.S. bachelor’s degree or a foreign equivalent are ineligible for the EB-2 classification.

Note on the Advanced Degree Requirement

USCIS clarifies that mere possession of an advanced degree or its equivalent is not sufficient for establishing petitioners’ eligibility for the EB-2 classification. Where the petition requires multiple credentials combined with experience, the issue is not whether a combination of more than one of the foreign degrees or credentials is comparable to a single U.S. bachelor’s degree or an advanced degree. Rather, USCIS considers whether the minimum requirements for the position meet the definition of an advanced degree.

What Kind of Evidence Should I Submit to Demonstrate the Advanced Degree?

Petitioners must submit evidence demonstrating that they satisfy the advanced degree requirements, such as:

• An official academic record showing that petitioners have a U.S. advanced degree or a foreign equivalent degree; or

• An official academic record showing that petitioners have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that petitioners have at least 5 years of progressive post-baccalaureate work experience in the specialty.

B. Exceptional Ability

Petitioners may also claim eligibility for the EB-2 classification as individuals who have exceptional ability if:

• They have exceptional ability in the sciences, arts, or business;

• They will substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future; and

• An employer in the United States seeks their services in one of the fields of sciences, arts, or business.³

What is “Exceptional Ability”?

Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” This standard is lower than the standard for extraordinary ability classification.

What Kind of Evidence Should I Submit to Demonstrate the Exceptional Ability?

To demonstrate that the petitioners satisfy the exceptional ability requirement, they must submit at least three of the following evidence (“initial evidence”):

• Official academic record showing that petitioners have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability

• Letters from current or former employers documenting at least 10 years of full-time experience in petitioners’ occupation

• A license to practice petitioners’ profession or certification for their profession or occupation

• Evidence that petitioners have commanded a salary or other remuneration for services that demonstrates their exceptional ability

• Membership in a professional association(s)

• Recognition for petitioners’ achievements and significant contributions to their industry or field by their peers, government entities, professional or business organizations

If these types of evidence do not readily apply to the petitioners’ occupation, they may submit other comparable evidence of eligibility.

Notes on the Exceptional Ability Requirement

The petitioner must demonstrate that he/she is above others in the field. That is, qualifications that most members of a given field possess cannot demonstrate a degree of expertise significantly above that ordinarily encountered. USCIS does not consider the mere possession of a degree, diploma, certificate or similar award from a college, university, school, or other institution of learning by itself sufficient evidence of exceptional ability.

In addition, formal recognition in the form of certificates and other documentation that existed contemporaneously with the petitioner’s claimed contributions and achievements may have more weight than letters prepared for the petition recognizing the petitioners’ achievements. USCIS uses the two-step analysis to evaluate the evidence submitted to demonstrate eligibility for exceptional ability classification.⁴

II. Eligibility Criteria for NIW Classification

As discussed, NIW waives the job offer requirement under the EB-2 classification. This NIW applies only to the EB-2 classification for members of the professions holding advanced degrees and persons of exceptional ability.

To establish eligibility for the NIW classification, the petitioners must demonstrate that:

• They qualify as either a member of the professions holding an advanced degree or as a person of exceptional ability (the EB-2 requirement); and

• The waiver of the job offer requirement, and thus, the labor certification requirement, is in the “national interest.”

Notes on the NIW Requirement

Qualification for the EB-2 classification as a member of the professions holding an advanced degree or as a person of exceptional ability does not automatically mean that the person qualifies for NIW. That is, petitioners seeking a waiver of the job offer must not only demonstrate eligibility for the classification, but also demonstrate that the waiver itself is in the national interest.

Specifically, in the exceptional ability context, all petitions for a person of exceptional ability must show that the 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. In addition, the petitioners seeking a waiver of the job offer must also demonstrate the additional requirement of national interest.

Three Prongs Requirement for NIW: “Dhanasar Test”

The petitioners have a burden to establish that the waiver of the job offer requirement is in the national interest, which USCIS considers on a case-by-case basis. USCIS may grant NIW as a matter of discretion if the petitioner demonstrates eligibility by a preponderance of the evidence, based on the following three prongs framework (“Dhanasar Test”):

• The person’s proposed endeavor has both substantial merit and national importance;

• The person is well positioned to advance the proposed endeavor; and

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

Dhanasar’s First Prong: The Proposed Endeavor has both Substantial Merit and National Importance

Petitioners of the EB-2 NIW green card must establish that the evidence presented demonstrates, by a preponderance of the evidence, that the proposed endeavor has substantial merit and national importance.

What is “Proposed Endeavor”?

The term “endeavor” is more specific than the general occupation. Thus, a petitioner should offer details not only as to what the occupation normally involves, but what types of work the person proposes to undertake specifically within that occupation. For example, while engineering is an occupation, simply listing the duties and responsibilities of an engineer does not suffice. Rather, the explanation of the proposed endeavor should describe the specific projects and goals, or the areas of engineering in which the person will work.

What is “Substantial Merit”?

Petitioners may demonstrate their endeavor’s substantial merit in areas including business, entrepreneurship, science, technology, culture, health, or education.

In addition, USCIS may consider evidence of the endeavor’s potential significant economic impact. Still, petitioners may establish merit without immediate or quantifiable economic impact. Endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.

What is “National Importance?”

Petitioners must also demonstrate the national importance of the specific endeavor proposed through its potential prospective impact. USCIS focuses on the nature of the proposed endeavor, rather than only the geographic breadth of the endeavor.

For example, as per the Matter of Dhanasar, the endeavor “may have national importance because it has national or even global implications within a particular field, such as certain improved manufacturing processes or medical advances.” The endeavor may also have “significant potential to employ U.S. workers” or “other substantial positive economic effects, particularly in an economically depressed area.” On the other hand, endeavors such as classroom teaching without broader implications for a field or region generally do not rise to the level of having national importance for the purpose of establishing eligibility for NIW.

In determining national importance, USCIS’ analysis focuses on what the petitioner will be doing rather than the specific occupational classification. Therefore, petitioners should submit a detailed description explaining the proposed endeavor and supporting documentary evidence to establish that the endeavor is of national importance.

USCIS states that, if the evidence demonstrates that the person’s proposed endeavor has the significant potential to broadly enhance societal welfare or cultural or artistic enrichment, or to contribute to the advancement of a valuable technology or field of study, it may rise to the level of national importance.

Dhanasar’s Second Prong: The Person is Well Positioned to Advance the Proposed Endeavor

As mentioned, the first prong focuses on the merit and importance of the petitioner’s proposed endeavor. In the second prong, the focus shifts to the petitioner as a person. Here, the petitioner must demonstrate that the petitioner is well positioned to advance the endeavor.

In evaluating whether the person satisfies the second prong of Dhanasar, USCIS considers factors including:

• The person’s education, skills, knowledge, and record of success in related or similar efforts;

• A model 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.

What Kind of Evidence Demonstrates that the Person is Well-Positioned to Advance a Proposed Endeavor?

The petitioners must establish that they are well-positioned to advance the endeavor by submitting evidence demonstrating their past achievements and corroborate projections related to the proposed endeavor. Petitioners who cannot demonstrate that the proposed endeavor is more likely than not to ultimately succeed may still satisfy this second prong of Dhanasar.  However, the petitioners’ claims must not be unsubstantiated or implausible.

The types of evidence that tend to show that the person satisfy this second prong of Dhanasar include:

• Degrees, certificates, or licenses in the field;

• Patents, trademarks, or copyrights developed by the person;

• Letters from experts in the person’s field, describing the person’s past achievements and providing specific examples of how the person is well positioned to advance the person’s endeavor;

• 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;

• A detailed business plan or other description, along with any relevant supporting evidence, when appropriate;

• Correspondence from prospective or potential employers, clients, or customers;

• Documentation reflecting feasible plans for financial support;

• 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 (i.e., 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 others are using the person’s work, such as:

– 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.

USCIS determines whether the person is well positioned to advance the proposed endeavor by the preponderance of evidence, by considering the totality of circumstances.

Dhanasar’s Third Prong: On balance, it would be Beneficial to the United States to Waive the Job Offer and thus the Permanent Labor Certification Requirements

Lastly, petitioners must demonstrate that the factors in favor of granting the waiver outweigh those that support the requirement of a job offer and thus a labor certification. This requirement aims to ensure that the admission of foreign workers will not adversely affect U.S. workers’ job opportunities, wages, and working conditions.

Accordingly, under the third prong, USCIS assesses whether the person’s endeavor and the person being well-positioned to advance that endeavor, taken together, provide benefits to the nation such that a waiver of the labor certification requirement outweighs the benefits that ordinarily flow from that requirement.

For example, where an entrepreneur is self-employed in a manner that generally does not adversely affect U.S. workers, or where the entrepreneur establishes or owns a business that provides jobs for U.S. workers, there may be little benefit from the labor certification requirement.

What Kind of Evidence Demonstrates that On Balance, it would be Beneficial to the United States to Waive the Job Offer and thus the Permanent Labor Certification Requirements?

To establish eligibility for the third prong, petitioners may submit the evidence that demonstrates one or more of the following factors:

• The impracticality of a labor certification application;

• The benefit to the United States from the prospective noncitizen’s contributions, even if other U.S. workers were also available; and

• The national interest in the person’s contributions is sufficiently urgent, such as U.S. competitiveness in STEM fields.

Furthermore, USCIS may consider more specific factors such as whether:

• Urgency, such as public health or safety, warrants foregoing the labor certification process;

• 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;

• The person’s endeavor has the potential to generate considerable revenue consistent, for example, with economic revitalization; and

• The person’s endeavor may lead to potential job creation.

Petitioners must satisfy all the EB-2 and NIW requirements to be eligible for the EB-2 NIW petitions.

Specific Considerations for Persons with Advanced Degrees in Science, Technology, Engineering, or Mathematics (STEM) Fields

USCIS recognizes the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.⁵

What are Critical and Emerging Technologies or Other STEM Areas Important to U.S. Competitiveness or National Security?

Critical and emerging technologies are those that are critical to U.S. national security, including military defense and the economy. USCIS reviews the specifics of each proposed endeavor on a case-by-case basis. Still, examples may include certain critical areas of artificial intelligence or quantum information science.⁶

USCIS may find that a STEM area is important to competitiveness or security in a variety of circumstances. USCIS may find the importance when the evidence demonstrates that an endeavor will help the United States to remain ahead of strategic competitors or current and potential adversaries or to achieve or maintain technology leadership or peer status among allies and partners. This includes when the endeavor relates to a field, including those that are research and development-intensive industries, where appropriate activity and investment, both early and later in the development cycle, may contribute to the United States’ competitiveness.

Dhanasar’s First Prong

Petitioners with advanced degrees in STEM fields must demonstrate that a STEM endeavor has both substantial merit and national importance. USCIS states that many proposed endeavors that aim to advance STEM technologies and research, whether in academic or industry settings, not only have substantial merit in relation to U.S. science and technology interests, but also have sufficiently broad potential implications to demonstrate national importance.

However, USCIS also states that some STEM endeavors lack national importance despite their recognized substantial merit. For example, proposed classroom teaching activities in STEM may have substantial merit in relation to U.S. educational interests. However, such activities, by themselves, generally do not indicate an impact in the field of STEM education more broadly. Therefore, such teaching activities generally would not establish their national importance.

Dhanasar’s Second Prong

For the second prong, petitioners must demonstrate that they are well positioned to advance the endeavor. USCIS focuses on the petitioners’ education and skill set. USCIS considers an advanced degree, particularly a Ph.D., in a STEM field, an especially positive factor to be considered along with other evidence for the assessment under the second prong, when the degree is tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security.

As doctoral dissertations and some master’s theses concentrate on a particular subject matter, individuals with a Ph.D. in a STEM field, and certain other individuals with advanced STEM degrees relating to the proposed endeavor, have scientific knowledge in a narrow STEM area. USCIS states that the area of concentration in a theoretical STEM area (i.e., theoretical mathematics or physics) may further U.S. competitiveness or national security as described in the proposed endeavor.

In addition to the discussed examples of evidence for the second prong, petitioners may submit any relevant evidence. This includes letters from interested government agencies demonstrating that the petitioners are well positioned to advance the proposed endeavor. However, an advanced degree in and of itself is not a basis to determine that a person satisfies the second prong.

Dhanasar’s Third Prong

As to the third prong, petitioners must establish that factors in favor of granting the waiver outweigh those that support the requirement of a job offer and thus a labor certification.

USCIS considers whether the United States may benefit from the person’s entry regardless of whether other U.S. workers are available, as well as other factors such as urgency. When evaluating the third prong, USCIS considers the following combination of facts to be a strong positive factor:

• The person possesses an advanced STEM degree, particularly a Ph.D.;

• The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and

• The person is well positioned to advance the proposed STEM endeavor of national importance.

USCIS considers the benefit to be especially positive where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness, or when letters from interested U.S. government agencies support the petitions.

Letters from Interested Government Agencies or Quasi-Governmental Entities

Letters from interested government agencies or quasi-governmental entities in the United States (i.e., federally-funded research and development centers) can have probative value to prove the requirements of all the three prongs.

Such letters may demonstrate that the proposed STEM endeavor promises to advance a critical and emerging technology or is otherwise important for purposes of maintaining the United States’ technological prominence. Government entities’ grant to the research or project that relate to the STEM endeavor can also indicate the national importance of the proposed endeavor.

An interested government agency or quasi-governmental entity can also demonstrate relevant information about how well-positioned the person is to advance the endeavor and how granting the waiver may outweigh the benefits of the job offer and labor certification requirement by explaining a particular urgency and/or benefit from the petitioners’ contributions, even if other U.S. workers are available.

Accordingly, though not required, submitting detailed letters from an interested government agency or quasi-governmental entity would provide a positive impact in establishing the petitioner’s eligibility for the NIW.

Specific Evidentiary Considerations for Entrepreneurs

Entrepreneurial petitioners undertaking a proposed endeavor may or will possess an ownership of the U.S.-based entity where they maintain or will maintain an active and central role such that their knowledge, skills, or experience would significantly advance the proposed endeavor.

USCIS recognizes that many entrepreneurs do not follow traditional career paths and there is no single way in which an entrepreneurial start-up entity must be structured. Accordingly, USCIS also recognizes unique aspects of evidence that entrepreneurial petitioners submit in relation to their proposed endeavor.  

Accordingly, entrepreneur petitioners may also submit the following types of evidence to establish that the endeavor has substantial merit and national importance, that the petitioner is well positioned to advance the endeavor, and that, on balance, it would be beneficial to waive the job offer and thus labor certification requirements.

Evidence of Ownership and Role in the U.S.-Based Entity

Entrepreneurial petitioners may be a founder or co-founder of a U.S.-based entity and have the entity’s ownership interest. The petitioners may also play an active and central role in the entity’s operations as the entity’s officer or similar position of authority or in another key role within the entity. Such evidence of ownership and critical role in the U.S.-based entity may have probative value in demonstrating they are well positioned to advance the endeavor.

Degrees, Certifications, Licenses, and Letters of Experience

Petitioners in entrepreneurship may also submit degrees, certification, licenses, and letters of experience to demonstrate that they have knowledge, skills, or experience that would significantly advance the proposed endeavor being undertaken by the entity. For example, it may serve to corroborate the petitioners’ claims if they successfully led prior start-up entities. Having a combination of relevant degrees and experience to equip them to advance the proposed endeavor may also serve the claims.

Investments

An investment may be considered independent validation of the substantial merit of the proposed endeavor, or the petitioner being well placed to advance the proposed endeavor. Such investment includes an outside investor’s binding commitment or other evidence demonstrating a future intent to invest, consistent with industry standards.

This investment may come from persons (i.e., such as angel investors) or established organizations (i.e., venture capital firms). In determining whether the petitioner has secured sufficient investments, USCIS also considers the amount of capital that would be appropriate to advance the specific endeavor.

Incubator or Accelerator Participation

Incubators are private or public entities that provide resources, support, and assistance to entrepreneurs to foster the growth and development of an idea or enterprise. Accelerators are generally private venture capital entities and focus on helping entrepreneurs and their start-ups speed the launch, growth, and scale of their businesses.

Entrepreneur’s admission into an incubator or accelerator may be considered as an endorsement of the petitioner’s proposed plan or past track record, as well as the petitioner being well positioned to advance the endeavor. Petitioners may submit evidence of the past success of the incubator or accelerator to demonstrate the credibility of the endorsement.

Awards or Grants

Evidence of receiving awards or grants may also provide independent validation and support for a finding of substantial merit and/or national importance of the proposed endeavor. They may also establish the petitioner being well positioned to advance the proposed endeavor. Such awards or grants may come from federal, state, or local government entities with expertise in economic development, research and development, or job creation, or other entities such as policy or research institutes.

Intellectual Property

Intellectual property may serve as probative evidence of a prior record of success and potential progress toward achieving the endeavor when accompanied by documentation showing why the intellectual property is significant to the field or endeavor. Such intellectual property includes relevant patents held by the petitioner or one of the petitioner’s current or prior start-up entities. The evidence should document how the petitioner contributed to the intellectual property’s development and how it has or may be used by their start-up entities or third parties.

Published Materials about the Petitioner, the Petitioner’s U.S.-Based Entity, or Both

Relevant published materials evidencing that the petitioner and/or the petitioner’s entity has received media’s significant attention or recognition can indicate the substantial merit and national interest of the proposed endeavor. Such materials should include some reference to the petitioner’s role as well. Petitioners may submit evidence of the media outlet’s reputation to demonstrate the credibility of the substantial merit and national importance.

Revenue Generation, Growth in Revenue, and Job Creation

Relevant growth history may support that the proposed endeavor and/or the petitioner’s start-up entity has substantial merit or that the petitioner is well positioned to advance the proposed endeavor. Petitioners may submit evidence demonstrating that the entity has exhibited growth in revenue generation and/or job creation in the United States and the petitioner’s contribution to such growth, among others.

For the current or proposed start-up entity located in an economically depressed area that has benefited or will benefit from jobs created by the start-up entity, this evidence of the location may also support that the proposed endeavor and/or the petitioner’s start-up entity have national importance.

Letters and Other Statements from Third Parties

Letters and other statements from relevant third-party reviewers may have probative value in demonstrating the substantial merit and national importance of the endeavor. They may also establish that the individual is well positioned to advance the endeavor.

Such letters may come from entities, such as relevant government entities, outside investors, or established business associations. Those entities should have a knowledge of:

• The research, products, or services developed by the petitioner and/or the petitioner’s entity; or the petitioner’s knowledge, skills, or

• Experience that would advance the proposed endeavor.

The entrepreneur’s own industry or technology experts that provide various forms of peer review may provide such letters. Third parties who review the merits of the entrepreneur’s business, business plan, product, or technology may also provide the evidential letters. Such third parties include prospective investors, retailers, or other industry experts,

Typical metrics to measure the entrepreneur’s endeavor include revenue generation, profitability, valuations, cash flow, or customer adoption. However, other metrics may be equally important. Though USCIS considers it favorable, USCIS does not require petitioners to establish that the proposed endeavor is more likely than not to ultimately succeed based solely on the typical metrics used to measure entrepreneurial endeavors.

Still, petitioners must show that they satisfy the three prongs of Dahanasar. That is, the proposed endeavor has both substantial merit and national importance, that the petitioner is well positioned to advance the proposed endeavor, and that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

USCIS considers the totality of circumstances to determine whether the petitioner establishes each of the three prongs by a preponderance of the evidence. Evidence demonstrating the petitioner’s past entrepreneurial achievements and that corroborates future work projections in the national interest are favorable factors. Claims must be accompanied by corroborating evidence.

Family of EB-2 Visa Holders

If USCIS approves the EB-2 NIW petition, the petitioner’s spouse and unmarried children under the age of 21 may qualify to apply for immigrant visas.

Related Blog: “EB-2 NIW Green Card For PhD Student?“

Disclaimer

1. Under the EB-2 (PERM) process, the petitioner (U.S. employer) must demonstrate that the position certified in the underlying permanent labor certification application or set forth on the Schedule A application requires a professional holding an advanced degree or the equivalent. The petitioner must demonstrate that the position, and the industry as a whole, normally requires that the position be filled by a person holding an advanced degree. Though NIW waives the job offer requirement, the job the petitioners would engage in as their endeavor in the United States should also require, at a minimum, the advanced degree they hold. ↩︎
2. In case of the EB-2 (PERM) petition, petitioners must meet any other requirements specified on the labor certification as applicable as of the priority date as well. ↩︎
3. This requirement does not apply to the EB-2 NIW classification as EB-2 NIW waives the job offer requirement. In case of the EB-2 (PERM) petition, petitioners must meet any requirements specified on the labor certification as applicable as well. ↩︎
4. Step 1: Assessment on Whether Evidence Meets any Regulatory Criteria: First, USCIS determines, by a preponderance of the evidence, whether the evidence submitted consists of at least three of the six regulatory criteria (initial evidence). If the criteria are not readily applicable to the petitioner’s occupation, USCIS further considers whether the evidence provided is truly comparable to the criteria listed in the regulation. Step 2: Final Merits Determination: Second, USCIS evaluates the evidence together when considering the petition in its entirety. The evidence should be indicative of the petitioners having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. USCIS must determine whether the petitioner, by a preponderance of the evidence, has demonstrated that the petitioner has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. ↩︎
5. “National security” refers to objectives to protect the security of the American people; expand economic prosperity and opportunity; and realize and defend democratic values. Interim National Security Strategic Guidance (PDF) outlines U.S. national security objectives. ↩︎
6. Being included as a priority in the annual research and development priorities memo about the President’s budget issued jointly by the White House Director of the Office of Science and Technology Policy and the Director of the Office of Management and Budget is one indicator of STEM areas important to U.S. competitiveness. In seeking to identify critical and emerging technological fields, USCIS can also look to the National Security Council and the National Science and Technology Council for authoritative lists. ↩︎