Introduction
The EB-2 (Advance Degreed Professional or Alien of Exceptional Ability Seeking a National Interest Waiver), hereinafter "EB-2 NIW", visa category came into existence with the Immigration Act of 1990 and provides a path to a U.S. Green Card for a foreign national. The purpose of creating the EB-2 NIW category was to attract and retain the best and brightest minds to the U.S. by waiving the job offer – and thus a labor certification - requirement. While the creation of the EB-2 NIW category was to benefit the U.S. and does allow a foreign national to self-sponsor, the EB-2 NIW was a category that had not been used frequently. Lack of success and vagueness with respect to the eligibility requirements may have contributed to the low usage of the category.
In 2022, the U.S. Citizenship and Immigration Services (USCIS) made changes to its Policy Manual regarding the EB-2 NIW category, and how USCIS adjudicators were to consider evidence and the facts of a case. These changes were positive and appear to have made the category a more viable option for some foreign nationals. In addition, President Biden issued an Executive Order (#14110) in October 2023, which was entitled "Safe, Secure Trustworthy Development and Use of Artificial Intelligence" that instructed the Department of Homeland Security to modernize immigration pathways for experts in artificial intelligence and other critical and emerging technologies, using various immigration categories, including the EB-2 NIW. The result has been an increase in the number of EB-2 NIW petition filings with USCIS over the last two years. Will this continue? This writing will provide a current update with respect to the EB-2 NIW category and what to expect for 2025.
What are the requirements to qualify under the EB-2 NIW visa category?
Before providing trend data, processing statistics and other information, some general information about the EB-2 NIW category and how a foreign national may qualify may be appropriate.
To qualify for the EB-2 NIW category, the petitioner must establish the following:
- The foreign national has an advanced degree or is a person of exceptional ability; AND
- The waiver of the job offer requirement is in the "national interest."
With respect to the first element, an "advanced degree" may be a master's degree, Ph.D. degree, or professional degree (such as an M.D. or J.D.). In addition, USCIS regulations also define an advanced degree as a bachelor's degree, plus five years of progressive experience in the field where the beneficiary is being sought. Please note that the bachelor' degree must be a single source degree, which means that the foreign national may not combine both education and experience to be equivalent to a U.S. bachelor's degree. Rather, the bachelor's degree earned abroad has to be equivalent to a U.S. bachelor's degree on its own.
"Exceptional ability" may be established in several different ways. The evidence must show the foreign national meets three (3) of the following six (6) criteria: 1) Evidence the beneficiary has a degree, diploma, certificate, etc. from a college, university, or school; 2) Evidence the beneficiary has ten (10) years or more of full-time experience in the field in which he or she is being sought; 3) Evidence the beneficiary has a license to practice in his or her profession; 4) Evidence the beneficiary has commanded a high salary; 5) Evidence the beneficiary is a member in a professional association; and 6) Evidence the beneficiary has achieved significant recognition for achievements in his or her field by peers, government entities, etc.
With respect to the second element (i.e., showing that the waiver of the job offer requirement is in the national interest), a USCIS Administrative Appeals Office decision, entitled Matter of Dhanasar, 26 I&N Dec. 884, 892-93 (AAO 2016) established a three prong test for USCIS adjudicators to apply to determine whether to grant a national interest waiver. Based on this decision, USCIS adjudicators may grant a national interest waiver as a matter of discretion, if the petitioner is able to demonstrate the following:
- The foreign national's proposed endeavor has both substantial merit and is of national importance.
- The foreign national is well positioned to advance the proposed endeavor; AND
- On balance, it would be beneficial to the U.S. to waiver the job offer requirement and/or the PERM labor certification requirement.
Please note that changes made to the USCIS Policy Manual in 2022 with respect to the EB-2 NIW appear to benefit foreign nationals who have a degree (particularly a Ph.D.) in the sciences, technology, engineering, mathematics (STEM) or who will perform work in a STEM field. For example, the USCIS Policy Manul now states:
"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 of importance to U.S. competitiveness or national security."
In addition, the Policy Manual now instructs USCIS examiners to give significant weight to the endeavor of the foreign national if it has the potential to support U.S. national security interests or enhance U.S. economic competitiveness, or if the petition is supported by letters from interested U.S. government agencies. The section of the USCIS Policy Manual that provides information about the EB-2 NIW category may be found at the following: https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5
What types of evidence are included with an EB-2 NIW petition?
The USCIS Policy Manual has specific guidance as to the types of evidence that may be presented to establish that a waiver of the job offer requirement is in the national interest. In addition, the Policy Manual provides specific evidentiary considerations that USCIS adjudicators are to follow when the foreign national has an advanced degree in a STEM field and/or is an entrepreneur.
Some of the types of evidence that may be included with an EB-2 NIW petition are the following:
- Degree certificates and any licenses issued to the foreign national.
- Evidence of any patents, trademarks, or copyrights granted to the foreign national.
- Letters from experts in the field, which describe the foreign national's past achievements (Note: These letters should provide specific examples of how the foreign national is well positioned to advance their endeavor).
- Published articles about the foreign national's achievements or current work.
- Documentation that shows that the foreign national's work has been cited frequently by others in the field.
- Published articles that provide positive information about the foreign national's work.
- Evidence that the foreign national's work has influenced their field.
- A plan describing how the foreign national intends to advance their proposed endeavor in the United States.
- Correspondence from prospective or potential employers, clients, or customers describing the work or services to be performed by the foreign national.
- Documentation reflecting feasible plans for obtaining financial support or financial support already obtained from U.S. investors to assist in pursuing the foreign national's endeavor in the U.S.
- 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 foreign national is well positioned to advance the proposed endeavor.
- Evidence that the foreign national has received awards or grants or other indications of relevant non-monetary support (for example, 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 the foreign national's work or product is being used by others in the field or by companies or by government agencies.
As mentioned above prior, the USCIS Policy Manual appears to place great weight on letters obtained from interested government agencies or quasi-governmental entities in the U.S. attesting to the importance of the foreign national's work and/or endeavor. The USCIS Policy Manual specifically indicates that, depending on the content of these letters, it may be sufficient to meet all three prongs of Matter of Dhanasar.
What do recent AAO decisions reflect with respect to EB-2 NIW petitions?
The USCIS Administrative Appeals Office (AAO) issues both precedent- and non-precedent decisions. Unlike non-precedent decisions, a precedent decision is designated as such by joint approval of the Secretary of the Department of Homeland Security (DHS), the Board of Immigration Appeals, and the Attorney General. Precedent decisions have the force and effect of law and are binding on USCIS adjudicators. There are few precedent decisions issued each year, if at all. Matter of Dhanasar, described above, is an example of a precedent decision issued by the AAO.
Non-precedent decisions are non-binding on USCIS adjudicates but are considered persuasive authority. They may still be helpful when trying to persuade a USCIS adjudicator on a particular point and do provide insight into what factors and evidence may result in EB-2 NIW petition approval.
USCIS AAO appeal data for EB-2 NIW petitions is available to the public. Based on our review of the appeal data, we have observed some emerging trends. Here is what the USCIS AAO data that is currently available reflects with respect to EB-2 NIW petitions1:
FY2019 (October 1, 2018 to September 30, 2019)
| Dismissed | Sustained | Remanded | % of Appeals Initially Granted |
| 27 | 3 | 6 | 8% |
FY2020 (October 1, 2019 to September 30, 2020)
| Dismissed | Sustained | Remanded | % of Appeals Initially Granted |
| 50 | 6 | 4 | 10% |
FY2021 (October 1, 2020 to September 30, 2021)
| Dismissed | Sustained | Remanded | % of Appeals Initially Granted |
| 227 | 11 | 42 | 3% |
FY2022 (October 1, 2021 to September 30, 2022)
| Dismissed | Sustained | Remanded | % of Appeals Initially Granted |
| 118 | 2 | 25 | 1% |
FY2023 (October 1, 2022 to September 30, 2023)
| Dismissed | Sustained | Remanded | % of Appeals Initially Granted |
| 568 | 17 | 65 | 2% |
"Sustained" means that the appeal was granted, and the case was likely approved. "Dismissed" means the decision to deny the EB-2 NIW case was upheld. "Remanded" means the AAO sent the case back to USCIS for further review and information gathering.
Based on a review of the above USCIS AAO appeal data, the following observations are noted:
- The data shows an increase in the number of EB-2 NIW appeals filed with the USCIS from FY2019 to FY2023.
- This increase in EB-2 NIW appeals filed with the AAO corresponds with the increase in EB-2 NIW petitions filed with USCIS from FY2019 to FY2023. (Note: See USCIS EB-2 NIW petition processing statistics below.).
- The data shows that the success rate for an EB-2 NIW petition appeal is not high, and that, overall, the success rate has decreased from FY2019 to FY2023. Therefore, it may be advisable to refile an EB-2 NIW petition, rather than file an appeal with the AAO.
It is unclear from the government's statistics how many EB-2 NIW cases that were remanded by the AAO back to USCIS for review and information gathering were ultimately approved, so the approval rate after filing an appeal may be slightly higher than what is listed above.
Please note that AAO appeal data for EB-2 NIW petitions for FY2024 has not been made available to the public as of this writing.
The AAO appeal data may be reviewed at the following link:
Even though AAO appeal data has not yet been made available to the public for FY2024 (October 1, 2023 to September 30, 2024), AAO decisions issued in FY2024 may still be reviewed. Please see the following link:
Based on a review of some of these decisions, it appears that evidence that the foreign national has a U.S. master's degree or Ph.D. degree in a STEM field or in a field that involves a critical and emerging technology, along with a copy of President Biden's Executive Order (#14110), the government's STEM degree program list, and/or the U.S. government's list of critical and emerging technologies, may be sufficient to meet the first prong of Matter of Dhanasar. For a copy of the U.S. government's STEM degree program list, as well as the U.S. government's list of critical and emerging technologies, please see the following links:
Besides providing insight into documentation that may be used to meet the first prong of Matter of Dhanasar, some of these decisions also provide insight into the importance of the foreign national's endeavor statement and how the lack of detail, with respect to how the foreign national describe their ability to advance their endeavor, may result in an unfavorable decision.. As a result, great care and thought should be put into the foreign national's endeavor statement.
What do current USCIS processing statistics show with respect to EB-2 NIW petitions for FY 2024 and in the years prior?
USCIS EB-2 NIW processing statistics reflect the following between FY2019 and FY2023:
EB-2 Form I-140 Petitions Received (ALL JOB TYPES)
| All Job Types | Non-NIW | NIW | Total | Percent (%) NIW |
| FY2019 | 65,710 | 12,510 | 78,220 | 16% |
| FY2020 | 53,280 | 14,310 | 67,600 | 21% |
| FY2021 | 55,990 | 14,610 | 70,600 | 20% |
| FY2022 | 62,490 | 21,990 | 84,470 | 26% |
| FY2023 | 53,320 | 39,010 | 93,010 | 41% |
EB-2 Form I-140 Petitions Approved (ALL JOB TYPES)
| All Job Types | Non-NIW | NIW | Total | Percent (%) NIW |
| FY2019 | 70,940 | 6,610 | 77,510 | 9% |
| FY2020 | 51,880 | 8,920 | 60,800 | 14% |
| FY2021 | 48,170 | 9,650 | 57,810 | 16% |
| FY2022 | 73,180 | 19,090 | 92,280 | 20% |
| FY2023 | 49,630 | 31,750 | 81,380 | 39% |
Note: These statistics show Form I-140 petitions approvals for each fiscal year. Form I-140 petitions approved for a given fiscal year may have been filed in that fiscal year, or may include petitions received in prior fiscal years, since USCIS' regular processing times are typically four to six months or longer.
The USCIS statistics show there has been a steady increase in EB-2 NIW petitions received and approved over the last five fiscal years, with almost 40% of all approved EB-2 petitions for FY 2023 being EB-2 NIW petitions. This is a large increase and/or contrast as compared to FY2019 in which only 9% of all EB-2 approved petitions were EB-2 NIW petitions.
The USCIS has also provided statistics with respect to the number of STEM Form I-140 petitions filed and approved over for the last several fiscal years, as follows:
EB-2 Form I-140 Petitions Received (STEM JOB TYPES ONLY)
| STEM Job Types | Non-NIW | NIW | Total | Percent (%) NIW |
| FY2019 | 49,850 | 9,260 | 59,100 | 16% |
| FY2020 | 40,690 | 10,180 | 50,870 | 20% |
| FY2021 | 43,640 | 9,440 | 53,070 | 17% |
| FY2022 | 48,250 | 13,550 | 61,790 | 21% |
| FY2023 | 33,010 | 20,950 | 53,960 | 39% |
EB-2 Form I-140 Petitions Approved (STEM JOB TYPES ONLY)
| STEM Job Types | Non-NIW | NIW | Total | Percent (%) NIW |
| FY2019 | 54,360 | 5,600 | 59,950 | 9% |
| FY2020 | 39,290 | 7,410 | 46,700 | 16% |
| FY2021 | 37,950 | 7,670 | 45,620 | 17% |
| FY2022 | 56,390 | 13,840 | 70,240 | 20% |
| FY2023 | 35,910 | 21,240 | 57,150 | 37% |
Note: These statistics show Form I-140 petitions approved for each fiscal year. Form I-140 petitions approved for the fiscal year may have been petitions filed in that fiscal year, or may include petitions received in prior fiscal years, since USCIS' regular processing times are typically four to six months or longer.
These statistics show a steady increase in the number of STEM EB-2 NIW petitions received by USCIS. It also shows a large increase in percentage of STEM EB-2 NIW petition approvals in FY2023 as compared to FY2019.
Surprisingly, USCIS does not deny many EB-2 petitions, as compared to the total number received each year. Here is the data showing the number of EB-2 petitions denied (both Non-NIW and NIW) between FY2019 and FY2023:
EB-2 Form I-140 Petitions Denied (STEM JOB TYPES ONLY)
| STEM Job Types | Non-NIW | NIW | Total | Percent (%) NIW |
| FY2019 | 670 | 320 | 1,160 | 27% |
| FY2020 | 440 | 700 | 1,140 | 61% |
| FY2021 | 360 | 610 | 960 | 64% |
| FY2022 | 480 | 750 | 1,230 | 61% |
| FY2023 | 280 | 2,130 | 2,400 | 96% |
EB-2 Form I-140 Petitions Denied (NON-STEM JOB TYPES ONLY)
| STEM Job Types | Non-NIW | NIW | Total | Percent (%) NIW |
| FY2019 | 160 | 230 | 450 | 51% |
| FY2020 | 120 | 570 | 690 | 83% |
| FY2021 | 100 | 690 | 790 | 87% |
| FY2022 | 140 | 820 | 960 | 85% |
| FY2023 | 110 | 3,920 | 4,030 | 97% |
These statistics show that EB-2 NIW denials are low in comparison to the overall number of EB-2 NIW petitions filed each fiscal year. However, they also show that EB-2 NIW petition denials comprise a larger percentage of denials for the EB-2 category (overall) as compared to prior years. For example, in FY2019 the percentage of EB-2 NIW petitions denied in comparison with all EB-2 petitions filed was only 51%. However, for FY2023, 97% of EB-2 Form I-140 petitions that were denied were EB-2 NIW petitions. It is important to note that non-STEM EB-2 NIW petitions appear to be denied more frequently than STEM petitions, when you compare the number of EB-2 NIW (ALL JOB TYPES) petitions received with the number of EB-2 NIW (STEM JOB TYPES) petitions received and the number of denied EB-2 NIW (NON-STEM JOB Types) petitions.
The increase in EB-2 NIW petition denials comprising an increasing number of overall EB-2 petition denials is a further indicator of the growth in EB-2 NIW petition submissions in the last few years. It also shows that there are some challenges in succeeding with the EB-2 NIW category. Interestingly, the number of EB-2 Form I-140 petition denials for STEM (non-NIW) jobs has decreased from 670 in FY2019 to 280 in FY2023, which may reveal the U.S. government's desire for STEM talent.
With respect to FY 2024, USCIS EB-2 NIW processing statistics available at the time of writing, these statistics reflect the following:
EB-2 Form I-140 Petitions Received (FY2024) (Note: Data only includes Q1, Q2 and Q3)
| Non-NIW | NIW | Total | Percent (%) NIW | |
| FY2024 | 39,254 | 44,861 | 84,115 | 53% |
EB-2 Form I-140 Petitions Approved (FY2024) (Note: Data only includes Q1, Q2, and Q3)
| Non-NIW | NIW | Total | Percent (%) NIW | |
| FY2024 | 35,304 | 22,201 | 57,505 | 39% |
EB-2 Form I-140 Petitions Denied (FY2024) (Note: Data only includes Q1, Q2, and Q3)
| Non-NIW | NIW | Total | Percent (%) NIW | |
| FY2024 | 1,348 | 7,864 | 9,212 | 85% |
The statistics released by USCIS show that the total number of EB-2 Form I-140 petitions received for FY2024 may be on pace to exceed what has been received in each of the prior fiscal years. The data also show that the number of approved EB-2 NIW petitions continues to comprise a larger percentage of overall EB-2 petitions approved. Likewise, most of the EB-2 petitions that are or will be denied for FY2024 will be EB-2 NIW petitions, and it is likely that over 90% of EB-2 petitions that are denied will be EB-2 NIW petitions. These statistics show a continued increase in the volume of EB-2 NIW petitions that are filed with the USCIS in the last two or three fiscal years as compared to FY2019, FY2020, and FY2021.
What can we expect in the future under a Harris Administration or Trump Administration with respect to the EB-2 NIW category?
The changes to the USCIS Policy Manual in 2022 with respect to how USCIS examiners are to review EB-2 NIW petitions, and President Biden's EO #14110 show a strong desire on the part of the Biden Administration to attract and retain foreign nationals with knowledge in Artificial Intelligence (AI), Critical and Emerging Technologies (CET), and STEM fields. It reflects a policy of not only trying to safely implement Artificial Intelligence in the U.S., but also to maintain a technological lead against other, potentially rival, nations. It is possible that if former President Trump is elected President, he will carry forward what the Biden Administration has started with respect to encouraging the use of the EB-2 NIW category to attract and retain talent. However, most do not believe this to be the case, and that it is likely that former President Trump will revise his Buy American and Hire American stance as per his proclamation from April 2017.
A second Trump Administration may try to come up with a different approach to address the need for talent in the U.S. and/or address the shortage of labor in certain occupations. For instance, Trump recently remarked that anyone who graduated from a college or university in the U.S. should receive a Green Card. In addition, Elon Musk may influence Trump's immigration policies, and there are reports that Musk is angling for an administrative position. Given media reports of the immigration issues Musk and his brother experienced as students and budding entrepreneurs in the U.S., Musk may try to influence Trump to revise the USCIS Policy Manual further to make the EB-2 NIW category more attractive to entrepreneurs.
If Vice President Harris is elected President, it is likely that her administration will carry forward the Biden Administration's policies with respect to the EB-2 NIW category and may even look to revise the USCIS Policy Manual further to broaden the U.S. government's ability to attract and retain AI, STEM and CET talent as well as those whom the U.S. educates at its institutions of higher learning.
Conclusion
There has been an increase in the number of EB-2 NIW petitions filed with the USCIS in the last three fiscal years and this will likely continue. The U.S. has a need for AI, STEM and CET talent to remain competitive in fields so critical to national security and economic predominance. Those foreign nationals who pursue an EB-2 NIW petition based on an endeavor in AI, a STEM field or a CET field will continue to have success, as compared to those who pursue the EB-2 NIW category based on a non-STEM endeavor. It is also certain that a Harris Administration will continue where the Biden Administration has left off. As the need for talent continues to grow worldwide, the U.S. will need to look at other options and create new immigration paths to attract and retain talent either through the EB-2 NIW category or other immigration categories.
Footnote
1. The following data is taken from reports produced by the US Citizenship and Immigration Services. https://www.uscis.gov/tools/reports-and-studies/immigration-and-citizenship-data.
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