When crafting an EB-2 NIW (National Interest Waiver) petition, it’s crucial to understand which arguments will strengthen your case and which can severely weaken it. One of the most common mistakes is focusing on labor shortages to establish national importance. While it might seem compelling to argue that the U.S. needs more professionals in your field, this approach can actually harm your petition. In this article, a summary of one of my YouTube videos, I tell you why.
Why “Labor Shortage” is a Forbidden Phrase in EB2 NIW
When preparing your EB2 NIW petition, whether you’re doing it yourself or working with a lawyer, you should avoid using the term “labor shortage.” USCIS officers are trained to flag these words because they are not relevant to the EB-2 NIW category. In fact, using this argument can lead to an RFE (Request for Evidence) and ultimately jeopardize your case.
USCIS officers will view your mention of a labor shortage as a signal that your case may be better suited for the traditional EB-2 route, which involves labor certification. Labor certification is the process designed to address workforce shortages, not the EB-2 NIW, which aims to waive that requirement due to the significant national impact of the petitioner’s work.
The Difference Between Labor Shortage and National Importance
It’s easy to confuse the concept of labor shortage with national importance, but they are fundamentally different. National importance in an EB-2 NIW case refers to endeavors that align with U.S. priorities, such as technological advancements or contributions to critical industries like renewable energy, healthcare, or infrastructure. For example, advancing battery technology for a green economy can be considered a matter of national importance, but filling a gap in the labor market for battery engineers is not.
Even if your field is experiencing a labor shortage, this is not a relevant point for an EB-2 NIW petition. USCIS makes it clear that arguments based on labor shortages are better addressed through the labor certification process, not through an NIW petition.
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Real Examples of How Labor Shortage Arguments Fail
Consider these real cases from the USCIS Administrative Appeals Office, which highlight the dangers of using labor shortage arguments:
- A Dentist’s Case: In one case, a dentist attempted to argue that there was a shortage of dental professionals in the U.S. While USCIS acknowledged that a labor shortage existed, the response emphasized that the proper route for this argument was through the labor certification process, not the EB-2 NIW.
- A Robotic Cleaning Innovator: Another petitioner was developing robotic products designed to alleviate labor shortages in certain manual industries. However, USCIS reiterated that the shortage of workers should be addressed by the Department of Labor through the labor certification process, not through a national interest waiver.
- An IT Worker’s Argument: In another instance, a software developer tried to emphasize the shortage of IT professionals in the U.S. USCIS dismissed this argument, noting that while there may indeed be a shortage, the labor certification process was the appropriate channel to address it.
- A Veterinarian’s Case: A veterinarian also argued that there was a shortage of professionals in her field, but again, USCIS stated that this argument belonged in the labor certification process, not in an NIW petition.
- A Pilot’s RFE: In one non-public RFE, a lawyer filed a petition for a pilot wanting to open an aviation training center. The argument centered around a shortage of pilots in the U.S., which USCIS immediately flagged as irrelevant to national importance. Despite other potentially strong arguments in the petition, the focus on labor shortages weakened the case significantly.
The Key Takeaway: Focus on Your Unique Contribution, Not Labor Shortage
The key to a successful EB-2 NIW petition is focusing on your unique contributions to a field of national importance. USCIS wants to see how your work will advance the U.S. in areas that align with national priorities, such as technological innovation, public health, or national security—not how it will fill workforce gaps.
You might feel tempted to mention the shortage of professionals in your field, but doing so can mislead USCIS into thinking that your case is more about filling a job role rather than contributing to something of national significance. Instead, focus on the broader impact of your work and how it aligns with the U.S.’s strategic goals.
Prong Three: When Urgency is a Valid Argument
There is one context where urgency can be a valid argument, but it should be handled carefully. Prong three of the Matter of Dhanasar in the NIW process allows petitioners to argue that their work is urgent to the national interest. This could include work that improves U.S. competitiveness in STEM fields or other critical areas. However, even in this context, avoid centering your argument around labor shortages. USCIS does not view a shortage of workers as a reason to grant a national interest waiver.
Instead, focus on the urgency of your contributions—how they will drive innovation, improve public welfare, or bolster the U.S. economy in a significant way. The urgency should be tied to the national interest, not simply the need for more workers in your field.
Conclusion: Stick to What Matters for Your NIW Petition
In conclusion, avoid the trap of using “labor shortage” in your EB2 NIW petition. The USCIS Policy Manual does not support this argument, and using it can seriously harm your case. Stick to what matters: your contributions, the importance of your work to the national interest, and the broader impact you are making in your field. By focusing on these points, you’ll give your petition the best chance of success.
If you’re unsure how to navigate the complexities of your NIW petition, make sure to study the USCIS Policy Manual and ensure your arguments align with the criteria that USCIS values. Avoid falling into the labor shortage trap and concentrate on the unique value you bring to the table.
This content in video format:
Photo by Tim Mossholder: https://www.pexels.com/photo/help-wanted-sign-on-glass-5737622/