EB-2 NIW: Eligibility based on STEM (Biden Administration's Jan 2022 guidance)

The Biden Administration's updated guidance on STEM expands opportunities to pursue EB-2 NIW. This post will discuss how to utilize the updated guidance.

I have devoted several posts in this newsletter to EB-2 NIW. I continue to believe it is an important and potentially underutilized category for immigration.

If you are just getting started on this topic, I recommend:

• The EB-2 NIW Primer, here.

• The Prong 1 Deep Dive, here.

If you are from India and already have a PERM-based I-140 approved, then at least consider my arguments for why you might want EB-2 NIW. My arguments are here.

As noted in my posts, to qualify for EB-2 NIW, the successful candidate must meet a 3-prong test as established in a December 2016 administrative law case called Matter of Dhanasar.

Prong 1 of the 3-prong test requires that the EB-2 NIW candidate demonstrate a “proposed endeavor of national importance.” Many cases are denied for failure to demonstrate prong 1.

In January 2022, at the start of this calendar year, the Biden Administration issued guidance to expand the availability of EB-2 NIW to more easily succeed for people engaged in STEM-based endeavors. That January 2022 guidance is now incorporated into the USCIS Policy Manual.

While the Biden Administration did not explicitly say this, the timing of the STEM guidance suggests that the Administration understands the H-1B cap is a fiasco and that there are many qualified STEM graduates who are not going to obtain H-1B visas in the lottery. So the idea is that for F-1 STEM graduates particularly those NOT born in India or China; they should be looking at EB-2 NIW.

The purpose of this post is to highlight the January 2022 guidance and discuss how it can be used by candidates seeking to pursue a green card through EB-2 NIW.