USCIS Q & A re: National Interest Waivers for Entrepreneurs

Link to USCIS Q & A covering National Interest Waivers for Entrepreneurs

Here is the relevant text:

NATIONAL INTEREST WAIVER

Q11. Is there a “national interest waiver” (NIW)? And if so, what is it? Can an entrepreneur qualify for a NIW?
A11. Yes. A NIW exempts the petitioner from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor. Entrepreneurs, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.

Q12. If an entrepreneur wants to file for a NIW, does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability?
A12. Yes. The entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.

Q13. If an entrepreneur wants to file for a NIW must he or she have an actual employer in the United States?
A13. No. Pursuant to INA 203(b)(2)(B), an entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for a NIW. In other words, an entrepreneur may be able to petition for him or herself and fill the role of both the petitioner and beneficiary. The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States.

Q14. Is there a definition of “national interest”?
A14. The term “national interest” is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history. However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).
While NYSDOT does not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the NIW under limited circumstances. Footnote 5 in the decision states:

“The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…[T]he petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field.”

NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement.

Q15. What are the three prongs laid out in the NYSDOT decision?
A15.

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.

2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.

3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.

Stated another way, the petitioner, whether the U.S. employer or the NIW applicant, must establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Q16. How does the first prong of NYSDOT relate to entrepreneurs?
A16. Under the first prong of the NYSDOT test, the entrepreneur must seek employment in an area that has substantial intrinsic merit. It is important for the entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications. In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit.

Q17. How does the second prong of NYSDOT relate to entrepreneurs?
A17. The second prong of the NYSDOT test requires that the entrepreneur demonstrate that the proposed benefit to be provided will be national in scope. For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact. As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

Q18. How does the third prong of NYSDOT relate to entrepreneurs?
A18. NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States. An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. NYSDOT’s third prong requires that the entrepreneur “present a significant benefit to the field of endeavor.” The field should be the same as that identified in prong one of the analysis and the entrepreneur must document how the entrepreneurial enterprise will benefit that field.

NYSDOT states:

“In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

USCIS Director Alejandro Mayorkas Blog Post: Encouraging Entrepreneurs and High Skilled Workers to Bolster the U.S. Economy and Spur Job Growth

Below please find a link to a blog post from the USCIS Director Alejandro Mayorkas, and some relevant excerpts, which discuss this current administration’s efforts to attract and retain high-skill entrepreneurs.

http://blog.uscis.gov/2011/08/encouraging-entrepreneurs-and-high.html

As part of the Administration’s comprehensive effort to attract and retain high-skill entrepreneurs, USCIS announced today [8/2/2011] that it will:

• Clarify that immigrant entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States;

Expand the Premium Processing Service to immigrant petitions for multinational executives and managers;

• Clarify when a sole employee-entrepreneur can establish a valid employer-employee relationship for the purposes of qualifying for an H-1B non-immigrant visa;

• Implement fundamental enhancements to streamline the EB-5 process based directly on stakeholder feedback;

• Launch new engagement opportunities to seek input and feedback on how to address the unique circumstances of entrepreneurs, new businesses and startup companies.

Of course, these efforts are more than welcome. But, I am approaching the same with a healthy degree of skepticism, considering USCIS continues to make questionable [am being polite here] decisions on visa matters involving highly-skilled foreign nationals with legitimate U.S. job offers. 

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

NIW [National Interest Waiver] green card petition approved for PhD student with only 3 scientific research publications and seven citations!

We are pleased to report an excellent decision from the USCIS [United States Citizenship and Immigration Service] Nebraska Service Center on a national interest waiver green card petition!

This was a challenging petition for a highly skilled, but young, social researcher, dedicated to improving the lives of America’s elderly population.  USCIS acknowledged “that the proposed employment was in the national interest of the United States”. BUT, USCIS also had serious doubts about whether our client’s “past record of specific prior achievement justified projections of future benefit in the national interest”.

By working closely with our client and some of the leading organizations in the United States devoted to research and education in all aspects of gerontology, we prepared a comprehensive response which clearly demonstrated that despite our client’s low number of publications/citations, her impact on the field was substantial.  Specifically, we solicited the opinions of the aforementioned leading organizations, and documented her influence on the field by showing that other leading figures in the field were not only taking notice of her work, but were also using it to advance their own work. 

Ultimately, we are so pleased that our client can now focus on helping America’s elderly population without being distracted by the immigration process!

Please find a description of the legal requirements for the EB-2 I-140 NIW petition after the jump.


Request for approval under the EB-2 NIW [Employment Based Second Preference, National Interest Waiver] category is made through a Form I-140 Petition for Immigrant Worker, filed with the USCIS. 

This category does NOT require an employer to act as a sponsor, allowing a foreign national to “self-petition”.  Further, based on current supply and demand for green cards, if the foreign national was born in a country other than India, China, Dominican Republic, Mexico or Philippines, the Form I-140 petition may be filed concurrently with a Form I-485 adjustment of status application – effectively allowing the foreign national to adjust from a temporary [nonimmigrant] status in the United States [such as F-1, J-1 or H-1B] to lawful permanent resident [green card] status.

Notably, for cases where the strength of the NIW case is questionable, it is also possible to file a stand-alone Form I-140 petition, which is a good way to “test the waters” and control cost.

The legal requirements for the EB-2 NIW are as follows:

(1) a history of past achievement that will lead to tangible benefits in the national interest;
(2) that you will continue to work in an area of substantial intrinsic merit;
(3) that your application for permanent residence deserves to be placed at the head of the line because your  work serves the national interest to a substantially greater degree than others.

The current legal standard for EB-2 NIW cases is derived from a CIS Administrative Appeals Office (AAO) decision, Matter of New York State Dept. of Transportation, Int. Dec. 3363 (Comm. 1998) (“NYSDOT”).

This case established a three pronged test:

(1) the self-petitioner must seek employment in an area of work that is of “substantial intrinsic merit;”
(2) the self-petitioner must demonstrate that the proposed benefit will be “national in scope;” and
(3) the self-petitioner must establish that he will serve the national interest to a “substantially greater degree” than would an available U.S. worker having the “same minimum qualifications.”

In order to meet the third prong of the NYSDOT test, an applicant must do more than merely work in an area of intrinsic merit that is national in scope, as required under the first two prongs of the NYSDOT test. The AAO restated this test as whether “[the employer would be] unlikely to locate a qualified worker who can benefit the United States in the same degree.” The applicant must distinguish herself from the hypothetical minimally qualified U.S. worker in one of two ways:

(1) by presenting a record of past achievement (e.g., a track record of accomplishment) that would reasonably lead to tangible benefits to the national interest; or
(2) by demonstrating that he/she is playing a key or critical role in a project that will yield tangible benefits and is national in scope.

Please don’t hesitate to contact the attorneys at Ryvin Wallace Group if you want to discuss your case for the National Interest Waiver!

Q & A: NIW [National Interest Waiver] green card petitions, legal standards and practical tips

Question: I am a PhD candidate in petroleum engineering (finished my masters in 2009) who works at a supercomputing center. I have about 16 publications including one journal article and 1 book chapter. I am either 1st or 2nd author on these. I have been a reviewer on 6 conferences. My area of research is geologic CO2 sequestration, identifying the candidate reservoirs and studying the long term effects. To a lesser extent, the research is about shale gas (but in development phase) because that’s where the CO2 is going to be stored. I managed to get 6 letters from collaborators, including 2 letters from NSF program directors. I also have a national award and about 40 citations of my work.

My question to you is this: What are my odds of getting an NIW EB2 approved given my qualifications?

Answer:  Hello and thank you for contacting me. Based on the information you have provided, it sounds very promising. Have you filed yet?

I would say your qualifications are good, in that USCIS should be satisfied that your past record of accomplishment will lead to tangible benefits in the US. However, with respect to the field, and whether it should be considered an area of substantial intrinsic merit and national in scope, that is more difficult to say, mainly because you have not provided as much information.

Please find below the standards for the NIW, for your reference. I would also advise that for EB-1 outstanding researcher/extraordinary ability cases and EB-2 NIW cases, presentation techniques play a large part in the process. In other words, you want to make the adjudicators job easier by presenting your evidence in a way that allows them to determine if your case is a winner within the first 5 minutes of review.


The EB-2 NIW I-140 petition should demonstrate the following:

1) a history of past achievement that will lead to tangible benefits in the national interest;

2) that you will continue to work in an area of substantial intrinsic merit;

3) that your application for permanent residence deserves to be placed at the head of the line because your work serves the national interest to a substantially greater degree than others.

The current legal standard for EB-2 NIW cases is derived from a CIS Administrative Appeals Office (AAO) decision, Matter of New York State Dept. of Transportation, Int. Dec. 3363 (Comm. 1998) (“NYSDOT”).

This case established a three pronged test: (1) the self-petitioner must seek employment in an area of work that is of “substantial intrinsic merit;” (2) the self-petitioner must demonstrate that the proposed benefit will be “national in scope;” and (3) the self-petitioner must establish that he will serve the national interest to a “substantially greater degree” than would an available U.S. worker having the “same minimum qualifications.”

In order to meet the third prong of the NYSDOT test, an applicant must do more than merely work in an area of intrinsic merit that is national in scope, as required under the first two prongs of the NYSDOT test.

The AAO restated this test as whether “[the employer would be] unlikely to locate a qualified worker who can benefit the United States in the same degree.” The applicant must distinguish herself from the hypothetical minimally qualified U.S. worker in one of two ways:

1) by presenting a record of past achievement (e.g., a track record of accomplishment) that would reasonably lead to tangible benefits to the national interest; or

2) by demonstrating that he/she is playing a key or critical role in a project that will yield tangible benefits and is national in scope.

Finally, here is a blog post related to EB-1 cases, which provides additional insight into how USCIS reviews cases for applicants similar to you: http://ryvinimmigrationblog.blogspot.com/2011/0

Best of luck and please do not hesitate to contact me if you need assistance.

Michael Ryvin
michael@ryvinlaw.com