On January 15, 2025, USCIS published a significant update to its Policy Manual guidance on EB-2 National Interest Waiver (NIW) petitions. The update represents a pivotal change in the adjudication of Employment-Based Second Preference (EB-2) National Interest Waiver (NIW) cases since the Administrative Appeals Office’s landmark decision in Matter of Dhanasar in 2016. This guidance clarifies adjudication standards and raises the bar for evidence quality and specificity in NIW petitions.
What changed
The policy memorandum elucidated how adjudicating officers should assess EB-2 eligibility and apply the established Dhanasar standard in a more uniform and evidence-based manner. While the three-prong test that governs NIW petitions remains intact, the guidance offers officers significantly more comprehensive instructions regarding the types of evidence to consider, the analytical framework to adopt, and the shortcomings to identify during the adjudication process.
The new guidance now controlling in Volume 6, Part F, Chapter 5 of the USCIS Policy Manual is effective immediately and applies to every NIW petition that was pending on January 15, 2025 or filed on or after that date.
Key substantive changes include:
- Threshold EB-2 eligibility as a gating issue: NIW applicants will need to establish their eligibility for EB-2 classification as a threshold issue, and their intended professional occupation and proposed endeavor will factor into USCIS’s evaluation of their EB-2 eligibility.
- Expanded national interest analysis: The guidance provides a considerably expanded treatment of the national importance requirement, with attention to specific types of arguments advanced by petitioners in regard to national importance and how USCIS tends to view them.
- Strengthened evidence standards: Well-structured petitions now generally encompass detailed legal analyses, meticulously crafted endeavor statements, thorough exhibit indexes, objective evidence validating professional achievements, and clear explanations linking each piece of evidence to the pertinent Dhanasar factors.
Why it matters
The update shifts the burden and structure of NIW petitions in three critical ways.
Filing timeline and retroactivity: Petitions filed before January 15, 2025 are adjudicated under the prior (less detailed) guidance. Petitions pending or filed on/after January 15 are held to the new, more explicit standards. Practitioners with pending cases should expect RFEs to reference the new language.
Evidence and argumentation: The memorandum has prompted practitioners to approach NIW petitions as comprehensive legal briefs rather than mere collections of supporting documents. Boilerplate letters of support and vague endeavor descriptions no longer carry sufficient weight. Requests for Evidence (RFEs) are already starting to reflect the new language officers are specifically asking petitioners to clarify the occupation, the exact endeavor, and the nexus between qualifications and endeavor.
Approval rates and difficulty: USCIS has begun issuing a higher percentage of requests for evidence and denials for NIWs, and in January 2025, USCIS updated guidance in their policy manual that raises the degree of difficulty to qualify for an NIW. However, well-prepared cases that clearly define a specific endeavor of substantial merit and national importance, tie the petitioner’s unique qualifications directly to that endeavor, and include strong independent corroborating evidence will continue to enjoy very high approval rates.
Way forward
-
Audit pending petitions immediately. If you have a case pending as of January 15, 2025, cross-check the petition against the new Policy Manual chapter to identify gaps in evidence, logical flow, or nexus argumentation. Anticipate RFEs.
-
Restructure new petitions as legal arguments, not document dumps. Lead with a detailed endeavor statement that identifies the occupation, specific project or research area, and measurable goals. Map each supporting document directly to the Dhanasar three-prong test (merit, national importance, well-positioned).
-
Strengthen independent corroboration. Do not rely solely on letters from colleagues or employers. Gather objective evidence: publications, grants, patents, licenses, media coverage, partnerships, revenue or funding data, or other third-party validation that the applicant’s work is advancing a field or addressing a recognized need.
-
Clarify profession and exceptional ability separately. If your client relies on an advanced degree, ensure the occupation actually requires a bachelor’s degree or higher as a baseline. If claiming exceptional ability, demonstrate at least three regulatory criteria and explain precisely how that exceptional ability connects to the proposed endeavor.
Disclaimer
This article summarizes publicly available USCIS policy guidance and is not legal advice. Folaform is a software company, not a law firm. Immigration law is complex and fact-specific; the implications of this policy change may vary depending on your client’s background, field, and proposed endeavor. Always consult a licensed immigration attorney before preparing or amending an NIW petition. The update to the U.S. Citizenship and Immigration Services (USCIS) Policy Manual on January 15, 2025, represents an important clarification, but agency policies can change without notice. Verify all guidance against the official USCIS Policy Manual at https://www.uscis.gov/i-9-central/form-i-9-resources/policy-manual.