DHS Updates Policy Guidance on National Interest Waivers (NIW) for STEM Graduates and Entrepreneurs

On January 21, 2022, USCIS updated its guidance to explain how STEM graduates and entrepreneurs can qualify for a National Interest Waiver (NIW) in the employment-based second preference category (EB-2).

Normally, a green card or immigrant visa based on a US employer’s offer of employment requires a labor certification from the US Department of Labor. However, an NIW application allows the noncitizen to bypass the labor certification process and waives the requirement for a job offer, meaning that a noncitizen can self-sponsor their application for a green card.

Noncitizens seeking an NIW must demonstrate that they either (1) have an advanced degree or its equivalent or (2) exceptional ability, and they must also meet the following three factors:

(1) The person’s proposed endeavor has both substantial merit and national importance;

(2) The person is well positioned to advance the proposed endeavor; and

(3) It would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

In its updated guidance, USCIS specifically recognizes the importance of STEM fields in critical or new technologies and areas that are important to the United States’ competitiveness or national security. USCIS clarifies that STEM graduates’ work either in academics or in specific industries can demonstrate substantial merit and national importance, but only classroom teaching activities may not be sufficient to satisfy the requirement of national importance. USCIS also acknowledged that holding a PhD in a STEM field relating to the noncitizen’s proposed work in the US (and potentially a STEM master’s degree specifically relating to the noncitizen’s proposed work in the US) is strong evidence that the noncitizen is well positioned to advance their proposed work in the US. USCIS also explains that letters from interested government agencies or quasi-governmental entities in the United States (like federally-funded research and development centers) are not required, but can be very helpful in proving the three NIW requirements noted above.

In its updated guidance, USCIS also explains how entrepreneurs specifically may demonstrate that they satisfy the three NIW requirements. USCIS acknowledges that many entrepreneurs do not follow traditional career paths and there is no single way in which a startup business must be structured. Among other examples, USICS confirms that a noncitizen’s ownership of or active/central role in a startup, receipt of funding or investment for a startup, and participation in a prominent startup accelerator may help to satisfy one or more of the three NIW requirements.

Written by Joseph Fungsang, an immigration attorney and partner-in-charge of the New York City office of [nap_names id=”FIRM-NAME-1″]. The above text is for informational purposes only and is not legal advice.

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