United States Citizenship and Immigration Services (“USCIS”) has issued updated guidance on the adjudication of National Interest Waivers (“NIW”) for petitioners holding advanced degrees in science, technology, engineering and mathematics (STEM). The guidance provides more tailored evidentiary considerations and recognizes the important role individuals with advanced STEM degrees play in ensuring the United States remains on the forefront of emerging and critical technologies.

The updated guidance, together with the expansion of Premium Processing to National Interest Waivers, potentially expedites the green card process by months, making NIWs an attractive option for advanced STEM degree holders. The only caveat is that visa number availability has recently become backlogged for this category, which means the beneficiary’s I-485 Adjustment of Status application cannot be filed until a visa number becomes available.

NIWs fall into the employment-based second preference (“EB-2”) category and offer foreign nationals petitioning for permanent work authorization a mechanism to bypass the permanent labor certification requirements generally imposed by the Department of Labor. When an employer wishes to hire a foreign national on a permanent basis, usually, they must obtain a permanent labor certification from the U.S. Department of Labor (“DOL”). To do so, the permanent labor certification proves there are no minimally qualified U.S. workers for the position, and that the foreign national’s employment will not adversely affect similarly situated U.S. workers. However, when a foreign national’s employment is deemed to be “in the interest of the U.S.,” the requirement of having a job offer, and thus the labor certification requirement, may be waived via an NIW petition.

Foreign nationals seeking this classification may do so with or without the sponsorship of an employer, provided, they hold an advanced degree, or can show by a preponderance of the evidence they possess exceptional ability through at least three of the following: (1) an official academic recording showing the foreign national has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability; (2) evidence in the form of letter(s) from current or former employer(s) showing the foreign national has at least 10 years of full-time experience in the occupation for which he or she is being sought; (3) a license to practice the profession or certification for a particular profession or occupation; (4) evidence the foreign national has commanded a salary, or other remuneration for services, which demonstrates exceptional ability, (5) evidence of membership in professional associations; or (6) evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

A foreign national who successfully makes this showing for the EB-2 classification still must show, by a preponderance of the evidence, the waiver of the job offer is in the national interest of the United States When determining if a waiver is in the national interest, USCIS will consider the evidence in light of the three factors outlined in Matter of Dhanasar: (1) whether the foreign national’s proposed endeavor has both substantial merit and national importance; (2) whether the foreign national is well positioned to advance the proposed endeavor; and (3) whether, on balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification.

Under the updated guidance, advanced degree holders still must satisfy each of the three prongs. However, given the national importance individuals with advanced STEM degrees play in fostering progress in “critical and emerging technologies,” holding an advanced STEM degree is deemed highly persuasive for each prong. The updated guidance focuses on attainment of advanced degrees, such as a PhD in a STEM field that is related to the endeavor. The degree should also be tied to furthering a critical and emerging technology to aid the United States in remaining competitive, or to enhance national security. USCIS officers are advised to consider whether a foreign national’s specific, often narrow, area of knowledge relates to their proposed endeavor.

Although a degree itself is persuasive, alone it is not a basis to determine if the foreign national is well positioned to advance the proposed endeavor. Other relevant evidence, such as letters from interested government agencies or quasi-governmental entities are suggested to supplement the degree. The guidance again emphasizes that the need to guarantee the benefit to the United States by admission of the foreign national is not outweighed by foregoing the job certification process designed to protect U.S. workers. While no exact formula is set forth, it is noted that a combination of possession of an advanced STEM degree, while engaged in furthering a critical or emerging technology, by a person well positioned to advance the proposed STEM endeavor of national importance, is especially persuasive. In our experience, the new guidance has resulted in approval of several NIW petitions for advanced STEM degree holders that otherwise may not have been approved. We are also seeing far fewer Requests for Evidence (“RFEs”) for NIWs where the beneficiary holds a STEM degree.

Additionally, as of January 30, 2023, USCIS expanded Premium Processing services to additional I-140 categories, including NIWs. For a fee of $2,500, USCIS will adjudicate the petition within 45 calendar days. The permanent labor certification process can be lengthy, so the NIW is an appealing option for foreign nationals holding advanced STEM degrees, especially with the new Premium Processing option. Despite this, NIWs do fall into the EB-2 category, which is currently backlogged because there are more applicants than visa numbers available. Even if a NIW is approved, a visa number may not be immediately available.

If you have questions about this subject or relate matters, please reach out to Harris Beach immigration attorney Danielle M. Rizzo at (716) 200-5149 and drizzo@harrisbeach.com, or the Harris Beach attorney with whom you most frequently work. Summer Associate Elizabeth Hughes helped draft this blog post.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.