Building a Strong Case for EB-2 National Interest Waiver for Entrepreneurs
In this article, we will address key factors for building a strong EB-2 National Interest Waiver (NIW) immigrant petition for entrepreneurs. EB-2 NIW is the second preference immigrant classification, and it is exclusive to individuals possessing advanced degrees or exceptional abilities. Within the EB-2 classification, there is a separate subset of petitions filed for a waiver of the job offer requirement, and it is commonly referred to as the national interest waiver.
About EB-2 National Interest Category of Green Card
Unlike other EB-2 immigrant cases where a job offer and a permanent labor certification are required, a petitioner applying for a national interest waiver does not need an employer or a job offer.
However, meeting the eligibility criteria is two-fold. The petitioner has to establish:
Qualification as an Advanced Degree Professional or Exceptional Individual: Being categorized as a professional with an advanced U.S. degree or a foreign equivalent or an individual possessing exceptional abilities.
Establishing National Interest: Beyond just meeting the prerequisites for the EB-2 classification, the petitioner must substantiate that the waiver of the job offer and, consequently, the labor certification mandate, is in the "national interest."
It's important to emphasize that fulfilling the requirements for the EB-2 classification, whether as an advanced degree professional or an individual with exceptional abilities, doesn't automatically guarantee eligibility for the national interest waiver. Regardless of the applicant's qualifications, the petitioner must not only prove suitability for the classification but also present a compelling case that the waiver itself aligns with the national interest.
The criteria for the national interest waiver petitions derive from the precedent decision Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). The petitioner may demonstrate eligibility for the national interest waiver based on the following three prongs:
The person’s proposed endeavor has both substantial merit and national importance;
The person is well positioned to advance the proposed endeavor; and
On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.
For entrepreneurs, USCIS has recently updated its Policy Manual to add specific considerations relevant to such cases.
Key Factors for Entrepreneurial EB-2 NIW Petitions
When it comes to entrepreneurs seeking approval for their proposed endeavors, presenting specific and convincing evidence is crucial. Entrepreneurs, often taking unconventional paths, need to meet a three-pronged framework to establish the merit, national importance, and their capacity to advance the venture. This article delves into the distinct evidentiary considerations that entrepreneurs should keep in mind to bolster their case.
Navigating Unique Entrepreneurial Evidence
Entrepreneurial applicants embarking on a venture, typically within a U.S.-based entity where they hold or will hold ownership, face distinct evidentiary requirements.
While the standard evidentiary factors apply, USCIS has indicated specific types of evidence that entrepreneurs may provide to satisfy the three prongs of the NIW test to establish that the endeavor has substantial merit and national importance, that the petitioner is well positioned to advance the endeavor, and that, on balance, it would be beneficial to waive the job offer and thus labor certification requirements.
Specific evidence may include proof of:
Ownership and Role in U.S. Entity: Entrepreneurs can showcase their ownership stake and operational involvement in the U.S. entity. Holding a significant position within the company, such as founder or officer, highlights their capability to advance the endeavor.
Educational Credentials and Experience: Entrepreneurs can present their educational background, certifications, and professional experience, showcasing their skills that align with the venture. Previous successes, like leading startups, can strengthen their case.
Investments: Demonstration of investments or commitments from external sources can validate the venture's potential and the entrepreneur's capability. This could include investments from individuals or venture capital firms.
Incubator or Accelerator Participation: Admission into an incubator or accelerator can serve as an endorsement of the entrepreneur's plan. Such recognition supports the notion that they are well poised to drive the endeavor.
Awards and Grants: Recognition through awards or grants, whether from government bodies or institutes, can independently substantiate the venture's merit and the entrepreneur's potential to advance it.
Intellectual Property: Holding relevant patents and detailing their significance bolsters the entrepreneur's credibility. Evidence of how this intellectual property contributes to the field strengthens the case.
Published Materials and Media Attention: Garnering attention in media outlets, whether through articles or other publications, signifies the venture's significance. The reputation of the media source adds weight to this evidence.
Revenue Growth and Job Creation: Metrics like revenue growth and job creation exemplify the venture's merit. Entrepreneurs can showcase their contribution to these positive trends.
Third-Party Letters and Statements: Endorsements from relevant third parties, including government entities or industry experts, lend credibility to the entrepreneur's claims.
Striking the Right Balance
Entrepreneurial ventures inherently carry risks, and success isn't guaranteed. The evidentiary process doesn't demand absolute certainty of success but requires establishing substantial merit, national importance, and the entrepreneur's capability. The totality of evidence is pivotal, and officers assess each prong by considering all provided information.
In alignment with the "Matter of Dhanasar," entrepreneurs aren't obligated to guarantee success based on conventional metrics. Instead, they must demonstrate their venture's significance and their potential to drive it forward. Past achievements and substantiated projections of future contributions are influential factors.
Crafting a Convincing Case
Entrepreneurs aiming to secure approval for their entrepreneurial petitions must navigate a multifaceted landscape of evidentiary considerations. While traditional metrics like revenue and job creation are important, the totality of evidence is central. By showcasing their ownership, educational background, investments, and more, entrepreneurs can present a comprehensive case that aligns with the unique demands of their entrepreneurial endeavors.
This intricate process necessitates careful preparation, meticulous documentation, and a clear alignment of the petitioner's capabilities with the country's well-being. In the end, the process isn't solely about predicting triumph but about substantiating potential, merit, and national importance. Through a compelling and thoroughly supported case, entrepreneurs can tip the scales in their favor, gaining the opportunity to contribute their innovative visions to the U.S. landscape.
If you would like to evaluate your chances for the EB-2 NIW category, feel free to contact our office and schedule a consultation.