Washington, D.C., January 31, 2022: U.S. Citizenship and Immigration Services (USCIS) announced last week that it was issuing new and updated guidance to immigration officers in relation to adjudicating EB-2 requests for “National Interest Waivers” (NIW).

This new guidance renders the EB-2 NIW process slightly more flexible and favors qualifying applicants with STEM degrees.

A. What is an EB-2 Green Card?

The EB-2 green card classification is intended for persons with a Master’s Degree (or its equivalent in the form of a Bachelor’s Degree plus 5 years of work experience). The EB-2 classification is very backlogged for Indian-born applicants, but applicants from other countries face a more promising situation. The EB-2 waiting list for green cards for the People’s Republic of China is reasonably short. All other countries simply have no waiting list at all.

B. What is a National Interest Waiver?

National Interest Waivers are unique to the EB-2 classification.

Normally, any EB-2 applicant requires an approved PERM Labor Certification issued by the U.S. Department of Labor. That process is time-consuming. It requires a job offer from a U.S. employer, which must satisfy the minimum “prevailing wage” set by the U.S. Department of Labor. It also requires that the U.S. employer take concrete steps to recruit local U.S. workers to fill the job. In practice, these steps can take up to 18 months to 24 months to complete.

The National Interest Waiver is a way of getting an exemption from all of those requirements. This means that the applicant does not need a job offer from a U.S. employer. Put another way, it allows a prospective applicant to Self-Sponsor their green card. Not only that, the National Interest Waiver exempts the applicant from engaging in recruitment and from complying with the prevailing wage requirements of the normal PERM Labor Certification. No application to the U.S. Department of Labor is required, which speeds up the process by between 18 to 24 months.

The requirements for National Interest Waivers, however, have never been easy. The latest version of the test is set out by a key court decision in Matter of Dhanasar (2016):

(1) The applicant’s proposed work in the U.S. has both substantial merit and national importance.
(2) The applicant is well positioned to advance the proposed endeavor.
(3) The U.S. would benefit if applicant is exempted from having to obtain employer sponsorship and from having to file a PERM Labor Certification.

C. What Does the New USCIS Guidance Mean?

The new USCIS guidance released on January 21, 2022 is intended to make it easier to apply for EB-2 National Interest Waivers if the applicant has a STEM career.

Consistent with the Biden Administration’s goal of removing barriers to legal immigration (President Biden’s Executive Order 14012), USCIS is clarifying how the National Interest Waiver can be used by STEM graduates and entrepreneurs, as well as the significance of letters from governmental and quasi-governmental entities. The updated guidance also serves to promote effective and efficient processing of benefits consistent with the executive order.

We summarize below some of helpful guidance on EB-2 NIW’s:

• In relation to part 1 of the Dhanasar test, USCIS now acknowledges that applicants may provide evidence of new and emerging technology fields in the form of letters from governments or private companies; syllabi from university courses; and published / peer-reviewed academic research sources. Additionally, the Office of the President – through the National Science and Technology Council or National Security Council — will publish a list of emerging technology subfields. Interestingly, the new guidance accepts that a STEM area may be important to maintaining the competitiveness of the United States because it is either novel research or may contribute to maintaining U.S. leadership of a new industry.
• In relation to part 2 of the Dhanasar test, USCIS will accept that a person’s education and research – particularly at the Ph.D. level in a STEM field – is evidence of the ability to advance the proposed endeavor, particularly when making the connection between the applicant’s STEM education and research and the proposed field that satisfies part 1.
• In relation to the exercise of discretion to waive the PERM Labor Certification (part 3 of the Dhanasar test), USCIS now expressly states that a person’s contribution may be sufficiently urgent because of the urgency for U.S. competitiveness in STEM fields.

This guidance, contained in Volume 6 of the Policy Manual, is effective immediately.

The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance.

D. Conclusion

The new guidance on EB-2 National Interest Waivers is a clear invitation to STEM graduates, particularly STEM Ph.D. students and graduates, to remain in the U.S. with a green card through an EB-2 National Interest Waiver. As always, caution, dedication to gathering robust evidence are important. Acting quickly, however, may be equally useful given the tendency for USCIS policies to shift and for USCIS procedures to take some time. For example, EB-2 processing is taking approximately 18 months at present, and I-907 Premium Processing is not presently available for EB-2 National Interest Waivers. Nevertheless, that timeline is sufficient for a STEM graduate to seek an EB-2 National Interest Waiver during their post-graduation STEM Optional Practical Training.

Donoso & Partners, a leading immigration law firm based in Washington, D.C., will continue to report on developments regarding the immigration law and policy through our news section of donosolaw.com.