A Guide for EB-2 National Interest Waiver (NIW) Petitions

In 1990, Congress created a green card path for people whose work is deemed to be in the national interest. The National Interest Waiver (NIW) category has been both highly popular and nearly dead at various times over the last three decades depending on the views of the government at various moments in time.

NIWs are a part of the employment-based, second preference section (i.e., EB-2) of the Immigration and Nationality Act (INA). A NIW is available to those “who are members of the professions holding advanced degrees” or who are foreign nationals of “exceptional ability” who can demonstrate that it is in the national interest for U.S. Citizenship and Immigration Services (USCIS) to “waive the requirements… that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States” for an EB-2 beneficiary (i.e., waiving the PERM process). In other words, no employer or sponsor is required for an NIW self-petitioner / applicant. This means that so long as a qualified applicant meets the “national interest” NIW requirements, applicants can get a green card by themselves without a sponsor!

All NIW self-petitioners / applicants must establish by a preponderance of the evidence each of the below 3 prongs:

1) The Applicant’s Planned Work has Substantial Merit and National Importance:

Merit must be demonstrated in areas such as business, entrepreneurship, science, technology, culture, health, or education. Merit may also be shown by demonstrating “significant economic impact,” though merit can be established without immediate or quantifiable economic impact. Endeavors related to research, pure science, and furthering human knowledge can qualify whether or not they translate into economic benefits for the United States. The nature of the proposed endeavor, rather than only the geographic breadth. 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.

National Importance involves broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance. In modifying this prong to assess “national in scope.” An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.

The USCIS Policy Manual sets the new tone by noting “the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.” “Critical and emerging technologies” are those that are critical to U.S. national security and include military defense and the economy. Examples include work in artificial intelligence or quantum information science. Petitioners may look to the list of critical and emerging technology subfields published by the White House’s National Science and Technology Council or the National Security Council.

2) The Applicant is Well-positioned to Advance Their Endeavor

Under this prong, the focus is on the person rather than the nature of the proposed endeavor. Can the applicant deliver? USCIS examiners are to consider the following factors:

• 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

Past achievements can be submitted as evidence for the second prong, and projections about the endeavor will need to be documented before an examiner will accept the assertion. Being “well-positioned to advance an endeavor” can be demonstrated even if the applicant cannot show the endeavor is more likely than not to ultimately succeed. A USCIS officer must consider the “totality of circumstances” and determine by a preponderance of the evidence that the person is well positioned to advance the endeavor

The USCIS will consider the following example factors:

• An individual’s education;
• An individual’s skills;
• An individual’s knowledge;
• An individual’s record of success in related or similar efforts;
• A model or plan for future activities;
• Any progress toward achieving the proposed endeavor; and
• The interest of potential customers, users, investors or other relevant entities or individuals.

USCIS notes that possessing a Ph.D. in a STEM area related to U.S. competitiveness or national security is “an especially positive factor” to be considered in assessing the second prong. USCIS will look at whether the STEM area relates to the proposed endeavor and even when the applicant’s area of concentration is in a theoretical STEM area, it may further U.S. competitiveness or national security. Evidence here may include letters from interested government agencies, but a degree in a STEM field alone is not enough.

Additional evidence to show an applicant is well positioned to advance a proposed endeavor:

• 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;

Further 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 (see below for a more detailed discussion of evidence related to financing for entrepreneurs);
• Evidence that the person has received investment from U.S. investors, such as venture capital firms, angel investors, or startup 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.

3) On Balance, it Benefits the United States to Waive the Job Offer and Labor Certification Requirements.

Applicants must show, on balance, that it would be beneficial to the U.S. to waive the requirements for a job offer, and thus, the requirement of a labor certification.

Evidence to satisfy this prong include:

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

More importantly: the USCIS considers the below evidence as strong positive factors in approving NIW petitions:

• The applicant possesses and advanced STEM degree, particularly a Ph.D.;
• The applicant will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and
• The applicant is well positioned to advance the proposed STEM endeavor of national importance.
• Letters from U.S. government agencies or quasi-government agencies (like federally funded research centers) may be used to support all three NIW prongs. For the first prong, agency letters may help if the agency can show it has expertise in the proposed endeavor and the proposed STEM endeavor promises to advance a critical or emerging technology or is important for the United States maintaining technological prominence. The letters may help with the second prong if they can show how well-positioned they were to advance the endeavor. The third prong is demonstrated if the letters focus on the urgency of the work or how the United States will benefit prospectively from the person’s contributions even if other U.S. workers are available.

NIW FOR ENTREPRENEURS

The USCIS recognizes that there are special considerations applicable to applicants who are Entrepreneurs. Entrepreneurs can provide the following types of evidence to meet the three NIW prongs:

Evidence of Ownership and Role in the U.S.-Based Entity:

• Whether the applicant has an ownership interest in a U.S. entity of which the applicant was a founder or co-founder and whether the applicant plays an active and central role as an officer or in another key role. This evidence can help show an applicaht is well positioned to advance the endeavor.

Degrees, Certifications, Licenses, Letters of Experience:

• Evidence of successfully leading prior startups or having a combination of relevant degrees and experience to equip the petitioner to advance the startup can help support an NIW claim.

Investments:

• An investment, binding commitment to invest, or other evidence showing a future intent to invest in the startup by an outside investor may help support a finding of substantial merit of the proposed endeavor or the applicant being well positioned to advance the endeavor. Angel investors or established organizations like venture capital firms as potential investors are especially helpful. USCIS will also consider the amount of capital needed to advance the endeavor and whether the petitioner has secured sufficient investments.

Incubator or Accelerator Participation:

• Receiving support from “incubators,” entities that provide resources and assistance to entrepreneur applicant to help them grow and develop their businesses, can help show an entrepreneur is well positioned to advance an endeavor. The same is true for support received from “accelerators” (private venture capital entities that help startups speed the launch, growth, and scale of their businesses. Being admitted to an incubator or accelerator is an endorsement of the petitioner’s proposed plan or past track record. Applications using incubator or accelerator admission should include evidence of the past success of the incubator or accelerator.

Awards or Grants:

• Petitioners can submit evidence of grant receipt or award funding from federal, state, or local government entities, as well as other entities like policy or research institutes, with expertise in economic development, research or development, or job creation. Such funding can show a person’s work has substantial merit, national importance, or both, and the petitioner is well positioned to advance the proposed endeavor.

Intellectual Property:

• Patents and other forms of intellectual property (IP) that are held by the petitioner’s current or prior startups can help show a prior record of success and potential progress toward achieving the endeavor. The petitioner will need to show why the intellectual property is significant to the field of endeavor and how the petitioner contributed to the development of the intellectual property as well as how the IP is being used internally and externally.

Published Materials about the Petitioner, the Petitioner’s U.S.-Based Entity, or Both:

• Media materials can help show the importance of the endeavor. Relevant published materials may include printed or online newspaper or magazine articles or other similar published materials and the petitioner’s role in the business must be described. Evidence should include additional documentation of the media outlet’s reputation to show the evidence is worthy of being weighed heavily.

Revenue Generation, Growth in Revenue, and Job Creation:

• USCIS will consider growth metrics that show that the proposed endeavor has substantial merit or that the petitioner is well positioned to advance the endeavor. Metrics may include data on the entity’s prior growth (revenue generated as well as jobs created). This evidence should be presented with documentation of the petitioner’s contribution to the growth. The evidence can also be used to show the startup has national importance especially when coupled with other evidence such as the location of the entity being in an economically depressed area that will benefit from the jobs created or that will be created.

Letters and Other Statements from Third Parties:

• Petitioners may include letters from relevant government entities, outside investors, or established business associations with knowledge of the research, products, or services developed by the entrepreneur and/or his or her entity or the entrepreneur’s knowledge and skills. Letters may also address the experience that would advance the proposed endeavor.

• Entrepreneurs’ businesses sometimes undergo forms of review by third parties, such as prospective investors, retailers, or other industry experts, and letters and other statements from relevant third-party reviewers may be used to show the substantial merit and national importance of the endeavor and that the entrepreneur is well positioned to advance the endeavor.

NIW Trends :

An analysis of AAO decisions over the past 3 years reveal the below USCIS trends in adjudicating NIW petitions:

• Cases based on work that is planned, but not already underway, are problematic;

• Job creation is a positive factor, but the applicant should show that the number of jobs being created is large and will have a substantial impact on the employment rate in a local area;
• The documentation for the cases must be substantial, and each claim should be backed up by evidence;
• Previous work should be closely related to the basis for the national interest argument;
• Evidence of specific projects and matters that demonstrate the work that is claimed to be of national importance should be included;
• Economic arguments based on the importance of an industry are not enough. The petitioner needs to show that their 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.

If you are unsure about how whether you are eligible for the EB-2 NIW, it is advisable to consult with an experienced immigration attorney before taking any action. As one of the most established firms practicing exclusively in the area of immigration law, our firm has successfully helped our clients obtain temporary work permits, green cards, and citizenship for generations. Note that the information provided in this article and website is intended for general information purposes only and should not be construed as legal advice. For additional information or information regarding other immigration matters, please call Attorney Thomas M. Lee for a free consultation at 213-251-5533

Topics

• Employment Law
• Immigration Law