Note: We have not provided the real names of our clients or certain defining details about their companies in order to protect their confidentiality.
EB-2 National Interest Waiver based on Exceptional Ability
Even when our clients are clearly remarkable, proving that to United States Citizen and Immigration Services (USCIS) never sets out so simply. George was a gifted computer programmer and product developer, having worked on honing his talents from the young age of ten. He has since spent his career developing hundreds of different applications, benefiting consumers through his intuitive designs and development of useful internet products.
Unsurprisingly, these undertakings evolved into a number of lucrative ventures. George has found success not only in the product development sphere, but also in entrepreneurship, having eventually established and led his own businesses. His long experience included finding work as a software developer while he was still in school at age seventeen, designing critical applications for a prestigious intelligence unit in his home country's military, and thereafter founding his own ventures in the form of software consulting firms, websites and various applications.
With the founding of his latest business in 2013, a popular website and app that provided a modernized version of a monumentally popular informational portal, it was not long after that George wished to move his operations to the United States in order to continue the growth of his company. His business was gaining in prosperity, attracting a few million unique visitors monthly, winning prestigious Internet awards, becoming a Top-rated Chrome and Firefox Extension, receiving wide media attention and attracting significant venture capital funding. George thus solicited our services for filing of an Immigrant Petition (Green Card) based on the EB-2 National Interest Waiver for individuals of exceptional ability who do not possess a formal degree.
The National Interest Waiver (NIW) is intended for foreign nationals who have an advanced degree or exceptional ability in the sciences, arts or business wishing to bypass the EB-2 employment-based green card's burdensome labor certification process. In a regular employment-sponsored Green Card application, the employer needs to go through the Recruitment process, in which he or she must attempt to locate U.S. workers who are willing and able to take up the foreign national's offered position and possess the minimum qualifications needed for the job.
Unfortunately, in this standardized process, it is impossible to articulate the need for essential qualities that only the foreign national possesses and which cannot be replaced by another candidate who simply has the minimum qualifications of a degree in the field as well as the mandated number of years of experience. The EB-2 NIW process was established for times when it would be unreasonable to require the hiring of a minimally qualified applicant for the job in that the national interest of the U.S. would subsequently be harmed, the more subjectively talented foreign national not being allowed to come to the U.S. In other words, USCIS chooses to grant the NIW when it views labor certification process to be detrimental to the U.S. national interest.
Criteria for the EB-2 National Interest Waiver
To prove that an applicant is eligible for the EB-2 NIW, a number of qualifications have to be met. These include the following:
A. The applicant has to possess an advanced degree in the field or qualify as a person of exceptional ability in the sciences, arts or business.
If the foreign national does not have an equivalent to a U.S. advanced degree, it is still possible to satisfy the qualifications as an individual of exceptional ability. To satisfy the exceptional ability standard, the petition must provide proof of at least three of the following:
- An official academic record showing the foreign national has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relevant to the area of exceptional ability.
- Letters documenting at least ten years of full-time experience.
- Any license or certificate necessary for practice of the profession.
- Evidence of high commanded salary or compensation for services demonstrative of exceptional ability.
- Membership in professional associations.
- Documents proving recognition by peers, government officials, professional or business organizations for significant achievements and contributions to the field.
- USCIS may also accept other comparable evidence of eligibility if the above standards are not applicable.
Note: In George's case, he did not possess an advanced degree, which would be defined as holding a master’s degree or bachelor’s degree with at least five years of post-bachelor degree experience.
To qualify as an individual of exceptional ability, the applicant must possess such attributes as to set him apart from other professionals within the relevant field overall.
B. The proposed undertaking is in the national interest.
USCIS may grant a national interest waiver if the petitioner demonstrates that:
- The foreign national’s proposed endeavor has both substantial merit and national importance.
- He or she is well positioned to advance the proposed endeavor.
- On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.
While the term "national interest" is not itself defined under statutory guidance, a number of factors have been shown by the USCIS Administrative Appeals Office as demonstrating such compliance, including:
- Improving the U.S. economy.
- Improving the wages and working conditions of U.S. workers.
- Improving education and training programs for American children and under-qualified workers.
- Improving health care.
- Providing affordable housing.
- Improving the environment.
- The request of an interested agency within the U.S. government.
The petition must provide persuasive evidence that the individual's contribution would be significant enough that the national interest would be harmed if the petitioner were forced to undergo through the usual requirement of a labor certification.
Proving George's Eligibility
Exceptional ability in his field
1. In order to meet three criteria as required under the definition of an individual of exceptional ability, we first covered the fact that George had over ten years of experience in web and software development.
We submitted a meticulously crafted listing of all his positions since his career's start in the year of 1999, describing every feat and respectable detail of these endeavors spanning all the way into the present. This included multiple titles and exploits, such as his multiple services as a software developer, team leader, founder and CEO. We were of course sure to describe in detail just what made each and every one of these positions so impressive. This meant defining the prestigious nature of each position in its context, as well as the personal contributions that George made in forwarding the success of the undertaken ventures.
2. Next we described the recognition that George had accumulated over his years in the internet technology field. We thus expounded on the successful nature of a number of his various enterprises. In essence, we used his numerous individual accolades in creating and running successful business ventures to summarize George's unique skills in product development and entrepreneurship in the internet technology field. We explained that it was his unique skills that resulted in his companies' leading market positions in addition to the delivering of products successful in garnering widespread commercial success and popularity.
In demonstrating the effect of George's expertise, we presented in explicit detail the context of his current enterprise and the success that has resulted from it. Additional detailed research again came into play regarding the commercial context of George's enterprise, and we provided ample proof of George's stature to maintain its successful engagement. This meant the presentation of the company's continuous strategy in addition to numerous examples of George's product, evidence of its success, multiple awards George's platform had received, statistics on the usage of the site and other evidence demonstrating its popularity among users, its coverage in hundreds of media publications and George's securing of substantial venture capital funding for the project. There could be little doubt that George lacked any sort of recognition in the internet technology industry through his latest company's explosive track record alone, not to mention the plentiful details of his long experience beforehand.
The testimony of a number of experts further bolstered George's accomplishments. By carefully selecting the most reputable individuals to best substantiate our client's status as an individual of exceptional ability, we left little room for error in USCIS's judgement. These testimonies included letters from business founders, serial entrepreneurs, CTOs, university professors, heads of startup accelerators, department heads, media figures and CEOs.
Finally, in order to proffer other comparable evidence that George was indeed eligible as an individual of exceptional ability (and thus meeting the third required criterion), we provided an ample selection of other qualifying evidence, including awards for excellence, high salary in the form of venture capital funding, judging the work of others in the field, etc. We also emphasized George's essential role in reaching the success of the companies he had founded, explaining how none of their progress would have been possible without his personal direction.
The Proposed Endeavor has substantial merit and importance, and is thus in the national interest
George being in the field of technological development, it is not difficult to assume that his endeavors are certainly in the national interest, these market sectors being essential in the modern era of technology innovation.
In demonstrating this, we first sought to persuade USCIS of the benefits George's company would bring to the internet medium. Through his company's improved facilitation of consumer utilization of one of the world's most popular informational websites, adding modern necessities such as significantly improving speed, functionality, and the ease of access to the information, we showed how the petitioner's business is facilitating technological development, improving access to knowledge and therefore contributing to improved education.
George's other ventures, as well as the presence of his expertise in general, would also work to improve the IT field as a whole, thus bringing about yet another source of needed innovation to the American market. This could only benefit the national interest, improving not only the economic prospects of the country, but also the knowledge of its citizenry. Technological innovation is always of national importance, and it is a staple among the many routes of which the U.S. does encourage such beneficial immigration.
A Unique Ability and positioning to advance his enterprises
While it is inarguable that the information technology (IT) sector is swarmed with competing ideas and products, only a select few are successful enough to emerge victorious where it matters most: user adoption. Fortunately, here lay the magic of George's expertise, we only had to demonstrate the same to USCIS.
George's exceptional abilities as a developer, innovator and CEO had already been substantively fleshed out, so we sought to effectively persuade how his proven record was also evident of an individual particularly circumstanced to secure the further advancement of his enterprises. Not all CEOs are created equal, and George's superb abilities in this regard could not just as well been replaced.
Therefore, it was a somewhat simple objective to sufficiently explain George's unique ability and position to build on his previous success and thereby benefit the U.S. national interest. By seizing on the extraordinary nature of our client's prowess in navigating the IT business field and achieving widespread user adoption, we made certain that his circumstance as CEO of his endeavors could not be underestimated, more than justifying the successful granting of an NIW.
To delay George's Arrival through the Labor Certification requirement would be to Harm the National Interest
Finally, and again by seizing upon the myriad successes and achievements of George's record in IT development and business, we demonstrated that there was no similarly situated replacements for the contributions that our client would bring to the American people. While he had no formal education or advanced degree, it was through a rare gift of innovation, technological expertise and business acumen that George developed his experience to such incredible lengths, and there could therefore be no doubt to his unique abilities in furthering his field, which, in the national interest, he should be allowed to do so in the U.S.
The normal labor certification requirement would then only greatly delay and reduce the substantial benefit he could bring to the American people, and more importantly, since he would be hiring himself, the labor certification would then exclude him from qualification under the EB-2 green card. For the sake of America's technological development and the improved education provided to it its citizenry by utility of his groundbreaking products, this could not be allowed on the premise of basic common sense.
It was therefore crucial, we explained in the petition to USCIS, that George be granted the NIW, waiving the labor certification requirement and allowing him to bring his talents to the U.S.
With great fortune and plaudit, George was granted the EB-2 National Interest Waiver and thus invited to continue building his companies in the U.S.
This was by no means a clear-cut case, and there was a plethora of obstacles and potential pitfalls that could have at any time derailed it. However, through careful research, strategy, and the adroitly handled approach of the NIW's requirements, George was rightfully judged worthy and the U.S. is surely better off for it.