EEB2-NIW: USCIS RELEASES NEW GUIDELINES FOR CASE ANALYSIS

Today (Jan 15, 2025), USCIS released an (extensive) Policy Update, announcing that it was updating its Policy Manual (the set of guidelines to assist officers in adjudicating immigration cases). The update takes effect immediately.

In our view, this update is positive as it doesn’t change much: it merely confirms a series of interpretations in line with what we have always advocated at HJC-LAW. However, those who are accustomed to mass-produced processes that repeat ‘template’ formulas (e.g., presenting a business plan for a consultancy with three recommendation letters) will likely need to adjust their strategies in light of this update.

Key Clarifications:

• USCIS has officially stated that it will not even review the NIW part of the process if the EB2 part is denied.
• In cases where the immigrant tries to prove their Advanced Degree by submitting a bachelor’s degree and 5 years of experience, USCIS will examine whether all the elements of the case relate to the same professional area. For example, if the degree is in engineering, it is expected that the years of experience, the requested position, and the NIW project (endeavor) are all related to engineering.
• The same applies in Exceptional Ability cases: position, experience, expertise, project, etc. – everything should relate to the same professional area.
• Position and project should not be confused: the position is the means to achieve the end. For example, an immigrant may hold a position as an engineer and, through that position, try to improve engineering in the U.S.
• It’s not enough to just claim that the immigrant’s field is important or that there are many job openings: the immigrant must demonstrate how their specific project will benefit the U.S.
• Projects cannot be “self-serving,” meaning no projects that will primarily benefit the immigrant and/or their employer. The benefits must be widespread throughout the U.S., with a focus on areas in need.
• USCIS emphasized that recommendation letters are more persuasive when they come from individuals with expertise in the field and who are familiar with the immigrant’s work and project. The letter should provide examples of how the immigrant has been successful and how they are well-positioned to implement their project. The letter, on its own, is unlikely to be sufficient as evidence: ideally, it should be accompanied by other documents.
• Similarly, Business Plans are helpful for understanding the immigrant’s plans, but they must be supported by other evidence and documents.
• Specific guidance and tips for entrepreneur/start-up cases.

Note: While emphasizing the points above, the update provides a series of examples, or rather, counterexamples: formulas that USCIS is tired of rejecting. It’s worth checking out!

For anyone wishing to study the full update, simply access this link