An EB-2 visa is an employment-based green card for foreign nationals who hold an advanced degree or its equivalent, or have an exceptional ability in their field. An NIW allows EB-2 applicants to file without a U.S. sponsor (employer) or job offer. To obtain an NIW, the applicant must show the following:
- Their proposed endeavor is of “substantial merit and national importance”
- They are “well-positioned” to execute their proposed endeavor
- On balance, it would be in the national interest to waive the job offer and labor certification (PERM) requirements
Neither Congress nor the USCIS has ever officially defined “national interest,” although recent interpretive decisions by the Administrative Appeals Unit of the USCIS, and other sources, give some guidance on what the USCIS is likely to consider “in the national interest.”
In its most authoritative decision to date on this question, the USCIS has noted several factors which may be considered in applying the national interest test to an alien of exceptional ability in business. These factors are:
- Improving the U.S. economy;
- Improving wages and working conditions of U.S. workers;
- Improving education and training programs for U.S. children and under-qualified workers;
- Improving health care;
- Providing more affordable housing for young and/or older, poorer U.S. residents;
- Improving the environment of the U.S. and making more productive use of natural resources; or
- A request from an interested U.S. government agency.
The proof of the seven factors noted above varies widely depending on the occupation of the person applying for the waiver. In addition to the required forms, we would like to submit some or all of the items listed below. In addition to this evidence, we will submit a cover letter/brief summarizing the evidence and arguing why waiver of the job offer/labor certification requirement would be in the “national interest.”
STEM Fields: In 2002, USCIS updated its policy guidance on NIW applications, recognizing the importance of progress in STEM fields and the essential role of persons with advanced degrees in Science, Technology, Engineering and Mathematics (STEM).
When evaluating an NIW with respect to a STEM graduate, USCIS will consider the following combination of facts contained in the record to be strong positive factors:
- The person possesses an advanced STEM degree, particularly a Ph.D.;
- The person will be engaged in work furthering a critical and emerging technology or other STEM areas important to U.S. competitiveness; and
- The person is well-positioned to advance the proposed STEM endeavor of national importance.
Entrepreneurs: The 2002 USCIS Policy Update also acknowledges that while entrepreneurs typically do not undergo the same type of peer review common in academia, entrepreneurs may operate in a variety of high-tech or cutting-edge industries that have their own industry or technology experts that provide various forms of peer review, such as prospective investors, retailers, or other industry experts.
When reviewing applications submitted by entrepreneurs, officers may consider the following:
- Evidence of ownership interest and role in the U.S.-based entity may have a probative value in demonstrating that the petitioner is well-positioned to advance the endeavor.
- Evidence of degrees, certifications, licenses, letters of experience, may indicate that the petitioner has knowledge, skills, or experience that would significantly advance the proposed endeavor being undertaken by the entity. For example, successfully leading prior start-up entities or having a combination of relevant degrees and experience to equip the petitioner to advance the proposed endeavor.
- An investment, binding commitment to invest, or other evidence demonstrating a future intent to invest in the entity by an outside investor, consistent with industry standards, may provide independent validation and support of a finding of the substantial merit of the proposed endeavor or the petitioner being well placed to advance the proposed endeavor.
- Evidence of an entrepreneur’s admission into an incubator or accelerator may serve as an endorsement of the petitioner’s proposed plan or past track record, and the petitioner being well-positioned to advance the endeavor. Petitioners may also submit evidence of the past success of the incubator for officers to consider when evaluating this evidence.
- Evidence of relevant grants or awards, particularly from entities with expertise in economic development, research, and development, or job creation may provide independent validation and support for a finding of substantial merit, national importance, or both, of the proposed endeavor or the petitioner being well-positioned to advance the proposed endeavor.
- Evidence of intellectual property, including relevant patents held by the petitioner or one of the petitioner’s current or prior start-up entities, accompanied by documentation showing why the intellectual property is significant to the field or endeavor, may serve as probative evidence of a prior record of success and potential progress toward achieving the endeavor.
- Published materials about the petitioner, the petitioner’s U.S.-based entity, or both
- Revenue generation, growth in revenue, and job creation may support that the proposed endeavor, the petitioner’s start-up entity, or both, has substantial merit or that the petitioner is well-positioned to advance the proposed endeavor. This evidence may also support that the proposed endeavor, the petitioner’s start-up entity, or both, have national importance when coupled with other evidence, such as the location of the current or proposed start-up entity in an economically depressed area that has benefited or will benefit from jobs created by the start-up entity.
- Letters and other statements from third parties, for example, relevant government entities, outside investors, or established business associations with knowledge of the proposed endeavor.
Although this is a rather brief synopsis of complex process, it does convey the quality and quantity of documentation we should submit. I am sure you also understand the vagaries of the USCIS and the possibility of incorrect decisions. For this reason, we want to present USCIS with the most complete and detailed petition possible. We would also require your assistance is gathering some of the letters and information described above, as well as completing the enclosed background questionnaire.
To the extent you have any additional publications, or have any additional evidence satisfying the categories outlined above, please let me know immediately so that we can direct your effort to obtain proper documentation.
If you would like further information or to discuss a potential case, please call our office at 404.816.8611 to set an appointment with one of our experienced immigration attorneys, or you schedule your consultation online here.
