Just Hear Me Out: The Case for Clarifying EB-2 NIW Requirements
After twenty years serving as a state and federal judge, I became the Chief of the Administrative Appeals Office at USCIS, overseeing a team of more than 120 highly skilled adjudicators. I worked alongside attorneys and adjudicators reviewing refugee cases in Iraq. Overall, USCIS employs some of the most dedicated adjudicators in the federal government. I’ve seen their dedication and commitment to case processing firsthand as they work to manage a large volume of applications.
Qualified individuals seeking an EB-2 visa intend to work in the U.S. in roles that require an advanced degree or exceptional ability in their field. Those applying for a National Interest Waiver (NIW) hope to have the usual labor certification requirement waived. To qualify for an NIW, the applicant’s skills must benefit the U.S. economy in areas such as science, engineering, healthcare, technology, math, education, entrepreneurship, or other fields that impact society. They must also hold an advanced degree or demonstrate exceptional ability and provide evidence that their work serves the national interest.
Providing clear guidance on the approval requirements could help USCIS speed up case adjudication.
Since USCIS permits applicants to self-petition rather than wait for a job offer, and because rejection and reapplication under different visa categories can be both time-consuming and costly, the guidance on the necessary proof for approval of an EB-2 NIW should be clear.
Clarifying the necessary requirements serves a dual purpose. Applicants must understand what is expected of them, regardless of their field or discipline. While there will always be a subjective element to the decision-making process, a clear list of expectations can help both applicants and the USCIS officers reviewing their cases.
Some might see the adjudication process as a simple yes-or-no decision, but that’s not usually the case for immigration adjudicators. It’s easy to identify when someone clearly doesn’t meet a required standard, but when everything looks in order, a careful review of all the necessary factors for approval takes time.
So, what can be done to make the application process easier for foreign workers to understand? In my experience reviewing cases, applicants often struggle with the concept of degree equivalency. Clearer examples or explanations could help applicants accurately understand how their background aligns with current standards. Not all universities and colleges offer the same level of study required for a degree, so applicants who focused their studies on one field sometimes struggle to prove their qualifications. Shifting focus toward advanced study in a specific field, along with experience, would help. It’s conceivable that in the near future, not all professions will require a bachelor’s degree for entry into a particular field, making it even more necessary for otherwise qualified applicants to demonstrate exceptional ability instead.
Proposing to work in a field with a proven national shortage of workers alone is not sufficient evidence of national importance to warrant a waiver. However, this might seem counterintuitive to the goal of filling those critical jobs. Understanding the reasoning behind this rule can help qualified applicants better explain how their skills will support a specific effort.
These are just a few ways to make the application process more transparent for qualified workers. USCIS has historically done a great job of keeping up with trends in the broader job market, especially regarding skill sets of national importance. The rapidly changing world of artificial intelligence and the decreased emphasis on obtaining a degree may require more explicit rules to attract qualified workers from abroad.
