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Explore visasEB-2 NIWCommon RFE topics

Eligibility criteria

Exceptional ability

Whether you meet three of six criteria and show expertise significantly above the ordinary in an area tied to your endeavor.

What USCIS is questioning

  • Whether at least three of the six regulatory criteria are met and, in the final merits review, whether your expertise is significantly above that ordinarily encountered, in an area directly related to your endeavor.[1,2]

The legal standard

  • 8 CFR 204.5(k)(3)(ii) lists six types of evidence, of which at least three are required; comparable evidence is allowed under (k)(3)(iii) if the criteria do not readily apply to your occupation.[2]
  • The law says a degree or professional license alone is not sufficient evidence of exceptional ability. The Policy Manual applies a two-step review, and for an NIW the area of exceptional ability must be directly related to the proposed endeavor; USCIS decides this case by case, looking at whether the two share skill sets, knowledge, or expertise.[1,3,4]

How the request usually reads

  • Interpretation An RFE on this issue typically says the evidence meets fewer than three criteria, does not show expertise significantly above others in the field, or concerns an area that does not relate to the proposed endeavor.[1,5]

Evidence petitioners often provide

  • Interpretation Documents for each criterion claimed: academic records, employer letters covering ten years of full-time experience, licenses or certifications, pay compared with others in the field, professional memberships, and recognition from peers, government entities, or organizations.[1,2]

Where responses go wrong

  • Qualifications that most people in the field have cannot show expertise significantly above the ordinary.[1]
  • Letters written for the petition may carry less weight than certificates and other recognition documented at the time of the achievement.[1]

AAO decisions on this issue

  • Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)

    Under the preponderance of the evidence standard, officers examine each piece of evidence for relevance, probative value, and credibility, individually and together; quality matters, not just quantity.

This information is for general informational purposes and is not legal advice. It does not create an attorney-client relationship and does not predict the outcome of any individual case.

Sources

  1. 1.USCIS Policy Manual, Volume 6, Part F, Chapter 5 — Advanced Degree or Exceptional AbilityUSCIS · USCIS Policy Manual · Checked Sep 27, 2026
  2. 2.8 CFR 204.5 - Petitions for employment-based immigrantseCFR (Office of the Federal Register) · Regulation · Checked Sep 27, 2026
  3. 3.8 U.S.C. 1153 (INA 203) — Allocation of immigrant visasOffice of the Law Revision Counsel, U.S. House of Representatives · Statute · Checked Sep 27, 2026
  4. 4.Policy Alert PA-2025-03: Second Preference Eligibility for National Interest Waiver PetitionsUSCIS · USCIS Policy Manual · Published Jan 15, 2025 · Checked Sep 27, 2026
  5. 5.USCIS Policy Manual, Volume 1, Part E, Chapter 6 - EvidenceUSCIS · USCIS Policy Manual · Checked Sep 27, 2026
  6. 6.Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)USCIS Administrative Appeals Office (published in DOJ EOIR Virtual Law Library) · AAO decision · Published Oct 20, 2010 · Checked Sep 27, 2026