US's new regulations on EB-2 National Interest Waiver requests.

U.S. Citizenship and Immigration Services (USCIS) is updating its policy guidance to establish clearer criteria for assessing eligibility for the second preference employment-based (EB-2) classification in immigrant petitions that seek a National Interest Waiver (NIW). USCIS has the authority to waive the job offer requirement and, consequently, the labor certification if it serves the interests of the United States. Furthermore, individuals pursuing an NIW are permitted to submit a petition on their own behalf.

To qualify for an NIW, applicants must first establish their eligibility for the underlying EB-2 classification, either as professionals holding advanced degrees or as individuals with exceptional abilities in the fields of science, arts, or business.

The updated guidance clarifies that for advanced degree professionals seeking an NIW, the evaluation will consider whether the proposed endeavor aligns with a recognized profession and, if relevant, whether the applicant possesses five years of post-bachelor’s experience in the specialty area. Additionally, for individuals of exceptional ability, the guidance stipulates that such ability must be pertinent to the proposed endeavor associated with the NIW request. The assessment of the relationship between exceptional ability and the proposed endeavor will be conducted on a case-by-case basis, taking into account any overlapping skill sets, knowledge, or expertise.

Moreover, this new guidance outlines the criteria for determining whether a proposed endeavor holds national significance and details how evidence, including letters of support and business plans, will be evaluated to ascertain whether an individual is well-positioned to advance the endeavor.

This guidance builds upon a prior update to the Policy Manual that addressed the specific considerations for individuals with advanced degrees in science, technology, engineering, and mathematics (STEM) fields, as well as entrepreneurs.

The new guidance is effective immediately and applies to all requests that are pending or filed on or after the publication date. The directives contained in the Policy Manual take precedence and replace any related previous guidance.

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