National Interest Waiver (EB-2 NIW)

The following explanation is largely a cut-and-paste of USCIS’s published Policy on the EB-2 National Interest Waiver category as a mechanism for attaining lawful permanent residence. It is fairly dense reading but may help you understand this green card category better.

The NIW is filed on an I-140 Petition to the U.S. government, and it is a basis for eventually filing your (and family members’) green cards on US-soil filings or via the consular path back in your home country. This NIW path falls under the EB-2 category of employment based green cards, ie, Employment-based Second Preference category. It is for people who satisfy NIW criteria and allows a waiver (bypassing) the US workforce recruitment requirement by a U.S. sponsor which normally takes place across 22+ months. But please note that despite waiving the U.S. recruitment, the wait to file the green cards is still over 1.75 years because Priority Dates (the date set by the filing-date of the NIW) are retrogressed under the U.S. State Department’s Visa Bulletin which carefully gives out a few green cards to people of different nationalities in every EB-category, every month of every year. 

Please find below the USCIS Policy on National Interest Waivers (NIWs).  USCIS Policy is an organized breakdown of law and factors that help USCIS decide if they will approve an NIW.  Notably, the USCIS law and policy permits a lot of adjudicator discretion on whether to approve a case. The Body of NIW Law is comprised of law from 4 sources:

1: STATUTE / It all starts with a Statute enacted by the U.S. Congress about this immigration benefit.  The statutory foundation for the green card using the NIW is briefly codified at INA 203(b)(2)(B)(i).  It is truly very brief.  

2: REGS / Then, clarifying Regulations are rolled out by the Executive Branch, to explain how the law will be executed. The regulation on NIWs appears at 8 CFR 204.5(k)(4)(ii).  The regulations are very brief.

3: CASE LAW / The statute and regulation were so brief on NIWs that the body of law was largely created through cases submitted to the US Immigration Service — cases that fought for approval in front of an immigration court after an initial Denial by a USCIS Adjudicator. The current case law — which should lead any USCIS adjudicator to approve or deny an NIW — stems from Matter of Dhanasar in 2016, the second half of the case is a worthwhile read here:https://www.justice.gov/eoir/page/file/920996/dl.

4: AGENCY POLICIES / Then, the U.S. President’s oversight agency (U.S. Department of Homeland Security who oversees immigration matters) creates Policies to clarify the method of executing the statute. Policies are NOT law; they are merely administrative guidance. But USCIS tried to follow the Policy like a checklist to make their life easier (although sometimes it is actually wrong).

USCIS POLICY ON NATIONAL INTEREST WAIVERS

cut/pasted from https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5 

D. National Interest Waiver of Job Offer

The Immigration and Nationality Act (INA) provides that certain persons may obtain a waiver of the job offer requirement if USCIS deems such waiver to be in the “national interest.”  This waiver provision applies only to the second preference (EB-2) classification for members of the professions holding advanced degrees and persons of exceptional ability. This waiver of the job offer is known as the national interest waiver.

A petition filed with a request for a national interest waiver on behalf of a person does not need to be supported by a job offer; therefore, the person may file as a self-petitioner. To establish eligibility, the petitioner has the burden of demonstrating that:

• The person qualifies as either a member of the professions holding an advanced degree or as a person of exceptional ability; and
• The waiver of the job offer requirement, and thus, the labor certification requirement, is in the “national interest.”

Qualification for the EB-2 classification as a member of the professions holding an advanced degree or as a person of exceptional ability does not automatically mean that the person qualifies for a national interest waiver. Regardless of whether the person is an advanced degree professional or demonstrates exceptional ability, the petitioner seeking a waiver of the job offer must not only demonstrate eligibility for the classification, but also demonstrate that the waiver itself is in the national interest. 

In the exceptional ability context, the INA requires that all petitions for a person of exceptional ability show that the person’s presence in the United States would substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future. But the petitioner must also demonstrate the additional requirement of national interest. Neither the INA nor the regulations define the term “national interest.” The burden rests with the petitioner to establish that the waiver of the job offer requirement is in the national interest. 

USCIS may grant a national interest waiver as a matter of discretion if the petitioner demonstrates eligibility by a preponderance of the evidence, based on the following three prongs: 

• 1-The person’s proposed endeavor has both substantial merit and national importance;
• 2-The person is well positioned to advance the proposed endeavor; and
• 3-On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements. 

1. Overview of the Three Prongs

FirstProng: The Proposed Endeavor has both Substantial Merit and National Importance

When reviewing the proposed endeavor, officers determine whether the evidence presented demonstrates, by a preponderance of the evidence, the proposed endeavor has substantial merit and national importance. The term “endeavor” is more specific than the general occupation; a petitioner should offer details not only as to what the occupation normally involves, but what types of work the person proposes to undertake specifically within that occupation. For example, while engineering is an occupation, the explanation of the proposed endeavor should describe the specific projects and goals, or the areas of engineering in which the person will work, rather than simply listing the duties and responsibilities of an engineer.

The endeavor’s merit may be demonstrated in areas including, but not limited to, business, entrepreneurship, science, technology, culture, health, or education. 

In addition, officers may consider evidence of the endeavor’s potential significant economic impact, but “merit may be established without immediate or quantifiable economic impact” and “endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.” 

Officers must also examine the national importance of the specific endeavor proposed by considering its potential prospective impact. Broad national impact is important more than just impact to a company for whom one will work. But officers should focus on the nature of the proposed endeavor, rather than only the geographic breadth of the endeavor. 

For example, the endeavor “may have national importance because it has national or even global implications within a particular field, such as certain improved manufacturing processes or medical advances.” Another way to consider national impact is economically. Economically, it may have “significant potential to employ U.S. workers” or “other substantial positive economic effects, particularly in an economically depressed area.” Therefore, petitioners should submit a detailed description explaining the proposed endeavor and supporting documentary evidence to establish that the endeavor is of national importance.

In determining national importance, the officer’s analysis should focus on what the beneficiary will be doing rather than the specific occupational classification. Endeavors such as classroom teaching, for example, without broader implications for a field or region, generally do not rise to the level of having national importance for the purpose of establishing eligibility for a national interest waiver.

Ultimately, 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 advancement of a valuable technology or field of study, it may rise to the level of national importance. 

Second Prong: The Person is Well Positioned to Advance the Proposed Endeavor

Unlike the first prong, which focuses on the merit and importance of the proposed endeavor, the second prong centers on the person. Specifically, the petitioner must demonstrate that the person is well positioned to advance the endeavor.

In evaluating whether the person is well positioned to advance the endeavor, USCIS considers factors including, but not limited to:

• The person’s education, skills, knowledge, and record of success in related or similar efforts;
• A model or plan that the person developed, or played a significant role in developing, for future activities related to the proposed endeavor;
• Any progress towards achieving the proposed endeavor; and
• The interest or support garnered by the person from potential customers, users, investors, or other relevant entities or persons.

The petitioner should submit evidence to document the person’s past achievements and corroborate projections related to the proposed endeavor to show that the person is well-positioned to advance the endeavor. Nationally impactful activities in the past are telling of the potential to make national impact in the future. 

Probability of success is also important. A person may be well-positioned to advance an endeavor even if the person cannot demonstrate that the proposed endeavor is more likely than not to ultimately succeed. Unsubstantiated or implausible claims would not meet the petitioner’s burden of proof.

Below is a non-exhaustive list of the types of evidence that tend to show that the person is well positioned to advance a proposed endeavor. This list is not meant to be a checklist or to indicate that any one type of evidence is either required or sufficient to establish eligibility. These can include:

• 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 (entrepreneur deserve an additional discussion of evidence related to financing); 
• 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 (see below for a more detailed discussion of supporting evidence from interested government agencies and quasi-governmental entities); 
• 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.

In each case, officers must consider the totality of circumstances to determine whether the preponderance of evidence establishes that the person is well positioned to advance the proposed endeavor.

Third Prong: On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements

Once officers have determined that the petitioner met the first two prongs, they proceed with the analysis of the third prong. This last prong requires the petitioner to demonstrate that the factors in favor of granting the waiver outweigh those that support the requirement of a job offer and thus a labor certification, which is intended to ensure that the admission of foreign workers will not adversely affect the job opportunities, wages, and working conditions of U.S. workers. 

While Congress sought to further the national interest by requiring job offers and labor certifications to protect U.S. workers, Congress also recognized that in certain instances the national interest is better served by a waiver of the job offer and thus the labor certification requirement. In such cases, a national interest waiver outweighs the benefits inherent to the labor certification process, which primarily focuses on a geographically limited labor market. Within the context of national interest waiver adjudications, Congress entrusted the Secretary of Homeland Security to balance this interest.

Therefore, for the third prong, an officer assesses whether the person’s endeavor and the person being well-positioned to advance that endeavor, taken together, provide benefits to the nation such that a waiver of the labor certification requirement outweighs the benefits that ordinarily flow from that requirement. For example, in the case of an entrepreneur, where the person is self-employed in a manner that generally does not adversely affect U.S. workers, or where the petitioner establishes or owns a business that provides jobs for U.S. workers, there may be little benefit from the labor certification.

Towards eligibility for the third prong, petitioners may submit evidence relating to one or more of the following factors, as outlined in Matter of Dhanasar:

• The impracticality of a labor certification application; 
• The benefit to the United States from the prospective applicants’ contributions, even if other U.S. workers were also available; and
• The national interest in the person’s contributions is sufficiently unique or urgent, such as U.S. competitiveness 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 needed to exceed 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.

Our law firm can provide a comprehensive assessment of your National Interest Waiver finding that it may work or also saving you valuable time and expense if it is reasonable to assume that the case is too narrow in its scope of national impact to be considered worthy of approval by USCIS. 

Please free to schedule a consultation by calling 1-703-531-0790 or emailing us at info@langwallace.com.