New York Lawyer's Legal Updates

EB-2 National Interest Waivers (Non-Physicians)

What to do if you would like to obtain a green card or permanent residency in the United States but you do not have anyone to petition for you, such as an employer. In certain cases, a person may self-petition for permanent residency in the Untied States, if they possess high qualifications.

Congress established a green card pathway for those whose work is in the national interest in 1990. But already in 1997, US Immigration services issued a decision in Matter of NY State Department of Transportation, making it is extremely hard for one to qualify for NIW. In 2016 the requirements for NIW were again “clarified”, adding more confusion. Since then, national interest waiver applications in EB2 category remain a subject of controversy, with immigration lawyers arguing USCIS makes it more difficult to qualify for the self-sponsoring green cards than it was initially envisioned by Congress.

NIWs form part of the employment-based second preference section (EB-2) of Immigration and Nationality Act. A NIW is only available to "members of the professions holding advanced degree" or foreign nationals with "exceptional capability" who can prove that it is in the U.S. national interest. Citizenship and Immigration Service (USCIS), to "waive requirements...that an alien's services be sought by an employer within the United States" (i.e. waive the PERM process). Congress has never defined "national interest" nor offered a regulatory definition by USCIS. The category was shaped instead by two cases from the USCIS Administrative Appeals Office (AAO), and their own understanding as to what national interest is.

The persons applying for employment based via categories, including EB2 NIW immigrant visa applicants must prove that they are either members of advanced professions or have their equivalent or exceptional abilities in science, business, or arts. In the context of exceptional ability, artists include athletes and entertainers. EB-2 visa applicants, including NIWs, must show that they have an advanced degree and must also have the education and work experience to qualify for the position. A master's or higher degree is considered an advanced degree. A bachelor's degree with five years progressive experience in the same field is equivalent education and work experience.

An exceptional level of knowledge is one that is significantly higher than the average. These following evidence may be used to prove that a person posses an exceptional ability:

  • Official academic record showing that applicant has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
  • Letter from current or former employers documenting at least ten years of experience;
  • A license to practice a profession or certification for a profession or occupation;
  • Evidence the applicant has commanded a salary or other remuneration for services demonstrating exceptional ability;
  • Membership in a professional association; or
  • Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional, or business organizations.

USCIS will use a two-step analysis, first considering if the three categories have been demonstrated and then determining if the evidence submitted is sufficient to demonstrate that the beneficiary meets the required high level of expertise when a decision on one’s EB2 NIW petition will be made.

Since the NYSDOT case standards made it impossible for entrepreneurs to qualify for EB2 NIW, in 2016 USCIS reworked them.

Under the 2016 Dhanasar standard, USCIS requires documentation of the following:

  1. The applicant’s planned work has substantial merit and national importance;
  2. The applicant is well-positioned to advance that endeavor; and
  3. On balance, it benefits the United States to waive the job offer and labor certification requirements.

These requirements were examined by the AAO in the Dhanasar determination to assist potential NIW applicants to determine if they are appropriate. Concerning the first prong, the AAO stated that applicants may demonstrate substantial merit in "a variety of areas" when deciding whether or not the requirement of "substantial merit is met.” According to Dhanasar, USCIS may consider a significant impact to be favorable. Dhanasar explains that "national significance" can be satisfied if an undertaking has national or global implications in a specific field such as the results of improved manufacturing processes or medical advancements. The AAO stressed that the geography of impact is not the defining factor and, even undertakings or ventures that are focused on one area of the United States can be considered to have national significance. For example, an endeavor with significant potential to hire U.S. workers, or other substantial economic benefits, especially in economically weak areas, might be considered to have national significance.

Concerning the second prong, whether applicant is in a position to promote the endeavor, the AAO stated that it would consider these these points:

  • Education is the foundation of an individual's life.
  • A person's abilities;
  • Knowledge is the ability to recognize and act upon information.
  • A person's track record of success in similar or related efforts.
  • A plan or model for future activities.
  • Any progress towards achieving the endeavor proposed;
  • Potential customers, users, investors, or any other relevant entities or people are all welcome to participate.

The third prong of Dhanasar asks applicants to demonstrate that it would be in the country's best interest to waive requirements for job offers and the requirement of labor certification. This third prong, according to the AAO, should make it easier for entrepreneurs to apply.

Perhaps the biggest challenge in winning the EB2 NIW is to deal with the vague requirements. Certain USCIS requirements that are not codified, came into play such as a demand for an applicant to show that there is work under way, that the number of jobs being created is large and will have a substantial impact on the employment rate in a local area; that each argument should be proven by evidence, significant references, and business will itself have a substantial economic impact on the regional or national economy or that the petitioner’s business will have a major impact on the industry itself. Of course, that most of these “demands” are usually voiced by USCIS at the time of an RFE (request for more evidence).

The Biden administration attempted to clarify the EB2 NIW prongs stating “If the evidence of record demonstrates that the person’s proposed endeavor has the significant potential to broadly enhance societal welfare or cultural or artistic enrichment, or to contribute to the advance of a valuable technology or field of study, it may rise to the level of national importance.”

Here, we will examine the Dhanasar requirements in detail.

I. Endeavor has Both Substantial Merit And National Importance

The USCIS Policy Manual defines "endeavor" as such: "The term "endeavor” is more specific than the general occupation. A petitioner should provide details not only about what the occupation usually involves but also what type of work the petitioner proposes to do within it." Merit must be shown in areas such as business, entrepreneurship and science, technology, education or health. However, the Policy Manual may accept other areas of work. Merit can also be demonstrated by "significant economic effect," although the Policy Manual specifically states that merit may be established even if there is no immediate or quantifiable economic benefit.

II. The person is well positioned to advance the proposed Endeavor

This prong focuses on the applicant and not the nature of the proposed venture. Does the applicant have the ability to deliver? The following factors are important for USCIS examiners:

Evidence that may demonstrate that the person is well-positioned to advance a proposed endeavor includes, but is not limited to:

  • Degrees, certificates, or licenses in the field;
  • Patents, trademarks, or copyrights developed by the person;
  • Letters from experts in the person’s field, describing the person’s past achievements and providing specific examples of how the person is well positioned to advance the person’s endeavor;
  • Published articles or media reports about the person’s achievements or current work;
  • Documentation demonstrating a strong citation history of the person’s work or excerpts of published articles showing positive discourse around, or adoption of, the person’s work;
  • Evidence that the person’s work has influenced the field of endeavor;
  • A plan describing how the person intends to continue the proposed work in the United States;
  • A detailed business plan or other description, along with any relevant supporting evidence, when appropriate;
  • Correspondence from prospective or potential employers, clients, or customers;
  • Documentation reflecting feasible plans for financial support
  • Evidence that the person has received investment from U.S. investors, such as venture capital firms, angel investors, or start-up accelerators, and that the amounts are appropriate to the relevant endeavor;
  • Copies of contracts, agreements, or licenses showing the potential impact of the proposed endeavor;
  • Letters from government agencies or quasi-governmental entities in the United States demonstrating that the person is well positioned to advance the proposed endeavor
  • Evidence that the person has received awards or grants or other indications of relevant non-monetary support (for example, using facilities free of charge) from federal, state, or local government entities with expertise in economic development, research and development, or job creation; and
  • Evidence demonstrating how the person’s work is being used by others, such as, but not limited to:
    • Contracts with companies using products that the person developed or assisted in developing;
    • Documents showing technology that the person invented, or contributed to inventing, and how others use that technology; and
    • Patents or licenses for innovations the person developed with documentation showing why the patent or license is significant to the field.

III. It would be beneficial for the United States to waive the job offer and permanent labor certification requirements

The third prong requires the applicant to prove that the factors favoring approval outweigh the ones supporting the need for labor certification. As examples, USCIS officers are given the example of an entrepreneur who provides employment for U.S. workers. USCIS provides these examples of factors that can now be weighed when reviewing third prong: a labor certification application is impossible to implement; even if there were other U.S workers, the United States will still reap the benefits of the potential noncitizen's contributions; the national interest in this person's contributions is sufficient urgent, as is U.S. competition in STEM fields. “More specific considerations may include:

  • Whether urgency, such as public health or safety, warrants foregoing the labor certification process;
  • Whether the labor certification process may prevent an employer from hiring a person with unique knowledge or skills exceeding the minimum requirements standard for that occupation, which cannot be appropriately captured by the labor certification;
  • Whether the person’s endeavor has the potential to generate considerable revenue consistent, for example, with economic revitalization; and
  • Whether the person’s endeavor may lead to potential job creation.”

Each prong must be thoroughly documented and background evidence must be provided as well. For example, if a person presents evidence of an award, documentation explaining the significance of the award, the qualifications for the pool of potential recipients, criteria for the awards must be also provided. Despite the web of requirements and challenges, a thoroughly prepared application will have a chance, and the benefits of the EB2 NIW, and waiver of labor certification cannot be underestimated.

Finally, despite the fact that EB2NIW would be granted in national interest of the United States, at times, there are backlogs in that category as well, meaning that even if I 140 petition is approved, a person cannot immediately or concurrently file for adjustment of status in the United States and must wait for the visa number to become current. One can check the availability of the EB2 NIW Immigrant visas using US department of State visa bulletin here.

If you need help with EB2 National Interest Waiver petition, reach out to us at 917 885 2261 or book your appointment online.

29 December 2022
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