EB2 NIW Green Card Visa
The EB2 NIW Green Card Visa provides for the waiver of job offer and labor certification requirements for for certain advanced degree professionals and individuals of exceptional ability. What does that mean? Essentially, you may be eligible if you are a professional of exceptional ability or a holder of an advanced degree who can provide meet the three-prong Matter of Dhanasar requirements:
- The person’s proposed endeavor has both substantial merit and national importance;
- The person is well positioned to advance the proposed endeavor; and
- It would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.
Because the EB2 NIW process provides a streamlined method for obtaining a green card visa, the bar is considerably higher for establishing eligibility.
Our EB2 NIW visa immigration business plans effectively validate your eligibility and your qualifications to meet current regulations, policies and adjudication trends.
EB2 NIW Green Card Visa Qualification
Qualification for the EB-2 classification as a member of the professions holding an advanced degree or as a person of exceptional ability does not automatically mean that the person qualifies for a national interest waiver. Regardless of whether the person is an advanced degree professional or demonstrates exceptional ability, the petitioner seeking a waiver of the job offer must not only demonstrate eligibility for the classification, but also demonstrate that the waiver itself is in the national interest.
Specifically, in the exceptional ability context, the INA requires that all petitions for a person of exceptional ability show that the person’s presence in the United States would substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future. Even if the petitioner demonstrates such exceptional ability, if the petitioner is seeking a waiver of the job offer, the petitioner must also demonstrate the additional requirement of national interest. Neither the INA nor the regulations define the term “national interest.”
The burden rests with the petitioner to establish that the waiver of the job offer requirement is in the national interest. USCIS considers every petition on a case-by-case basis.
The Burden of Proof for EB2 NIW Green Card Visa Qualification
As is the case with most employment- or investment-based visas, a credible case for eligibility is essential to a successful EB2 national interest waiver petition. This case should be made thoughtfully in the business plan with solid required documentation to support it.
Sometimes, however, an emphasis on gathering and assembling adequate documentation can cause a key component to be overlooked. Make no mistake: The petition will not be approved without all of the required documentation. But it will also be at risk if the question remains unanswered as to how the petitioner's qualifications are going to serve the national interest.
Our EB2 national interest waiver business plans clearly state how approval of the application will in fact further the national interest. This question is more difficult to answer so sometimes it is simply ignored.
IMMIGRATION ATTORNEYS
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Matter of Dhanasar, December 27, 2016
USCIS may grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), vacated. This download, 26 I&N Dec. 884 (AAO 2016), contains the full text of the Matter of Dhanasar decision.
2022 Guidance on the EB2 NIW Green Card Visa--Executive Order 14012
The Matter of Dhanasar became the basis for a paradigm shift in how EB2 NIW, national interest waiver, petitions were evaluated and adjudicated. Executive Order 14012, issued on February 17, 2022, is attempting to change the perspective on legal immigration.
Consistent with this Administration’s goal of removing barriers to legal immigration under President Biden’s Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, USCIS is clarifying how the national interest waiver can be used by STEM graduates and entrepreneurs, as well as the significance of letters from governmental and quasi-governmental entities. The updated guidance also serves to promote effective and efficient processing of benefits consistent with the executive order.
Just What is in the National Interest?
In The National Interest
Noncitizens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the nation.
Recently, the USCIS announced updated guidance on adjudicating requests for “National Interest Waivers” regarding job offer and labor certification requirements for certain advanced degree professionals and individuals of exceptional ability. This includes discussing the unique considerations for persons with advanced degrees in science, technology, engineering, and math (STEM) fields and entrepreneurs.
This is a discretionary evaluation with nothing but guidance to direct either the applicant or the adjudicator.
This is the guidance offered by the USCIS: The endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. Evidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required, as an endeavor’s merit may be established without immediate or quantifiable economic impact.
For example, endeavors related to research, pure science, and the furtherance of human knowledge
may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.
The current trend in this area--which appears to favor STEM contributors--is described in the recent Executive Order 14012. If you can verify that you have exceptional ability or an advanced degree in science, technology, engineering, or mathematics, you will likely have an easier time getting a qualifying endeavor approved.
Green Card Through a Physician National Interest Waiver (NIW)
How can second-preference immigrant physicians be granted a national interest waiver based on service in a medically underserved area or VA facility?
Any alien physician (namely doctors of medicine and doctors of osteopathy) for whom an immigrant visa petition has been filed pursuant to section 203(b)(2) of the Act shall be granted a national interest waiver under section 203(b)(2)(B)(ii) of the Act if the physician requests the waiver in accordance with this section and establishes that:
- You must agree to work full-time in a clinical practice. For most physician NIW cases, the required period of service is 5 years
- You must work in a primary care (such as a general practitioner, family practice petitioner, general internist, pediatrician, obstetrician/gynecologist, or psychiatrist) or be a specialty physician
- You must serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA)
- You must obtain a statement from a federal agency or a state department of health that has knowledge of your qualifications as a physician and that states your work is in the public interest (This statement is known as an attestation)
Is there a time limit on how long the physician has to complete the required medical service?
(1) If the physician already has authorization to accept employment (other than as a J-1 exchange alien), the beneficiary physician must complete the aggregate 5 years of qualifying full-time clinical practice during the 6-year period beginning on the date of approval of the Form I-140.
(2) If the physician must obtain authorization to accept employment before the physician may lawfully begin working, the physician must complete the aggregate 5 years of qualifying full-time clinical practice during the 6-year period beginning on the date of the Service issues the necessary employment authorization document.
What is Exceptional Ability?
There are various ways to show that the business is more than marginal, in the sense of only providing a livelihood for the applicant. If the business does not yet generate sufficient income necessary to support the applicant and family, then one can look to the economic impact of the business. The enterprise must have the present or future capacity to generate more than a minimal living for the investor and family in order to make a significant economic contribution.
Exceptional Ability
You must be able to show exceptional ability in the sciences, arts, or business, which will greatly benefit the US economy, cultural or educational interests, or welfare in the future. Exceptional ability means:
a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Advanced Degree
An advanced degree is any US academic or professional degree or a foreign equivalent degree above that of baccalaureate. A US baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty is considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the beneficiary must have a US doctorate or a foreign equivalent degree.
What is an Advanced Degree?
A beneficiary can satisfy the advanced degree requirement by holding either a:
- United States master’s degree or higher or a foreign degree evaluated to be the equivalent of a US master’s degree or higher; or
- United States bachelor’s degree, or a foreign degree evaluated to be the equivalent of a US bachelor’s degree, plus five years of progressive, post-degree work experience.
A beneficiary who does not possess at least a US bachelor’s degree or a foreign equivalent degree is ineligible for this classification.
EB2 NIW Documentation Required
- If the alien holds an advanced degree:
- An official academic record showing they have a US advanced degree or a foreign equivalent degree, or
- An official academic record showing they have a US baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing they have at least five years of progressive post-baccalaureate experience in the specialty.
- If the alien is seeking to qualify as having an exceptional ability in the sciences, arts, or business:
- An official academic record showing they have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
- A letter from a current or former employer showing the alien has at least 10 years of full-time experience in the occupation;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence the alien has commanded a salary or other pay for services that demonstrates exceptional ability;
- Evidence of membership in professional associations; or
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
- If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s exceptional ability.
- If waiving the job offer/labor certification requirement:
- Either Parts J, K, L, and M of ETA Form 9089 or Part B of the Form ETA 750;
- Evidence showing the waiver would be in the national interest, including:
- How their proposed endeavor has both substantial merit and national importance;
- How the alien is well-positioned to advance the proposed endeavor; and
- How it would be beneficial to the United States to waive the job offer, and thus the labor certifications requirements.
Items to Validate in a Compliant EB2 NIW Business Plan
Listed below is a point-by-point analysis of some of the ways in which we validate specifically the EB2 NIW requirements in each plan. Several of these methods are proprietary and are recognized as such by the USCIS. Do not be misled by our reasonable pricing (see below): Our plans are the most compliant and reasonable--an absolute requirement for acceptance--of those offered.
Substantial Merit and National Importance: When we create EB2 NIW business plans, we face the same questions about establishing the value of the endeavor as the adjudicators face in evaluating it. Our job is to validate that the endeavor is viable and worthwhile in the context of being in the national interest. This is not always a straightforward analysis. We may be able to write a beautiful story about your world-renowned talent as a violin-maker. But, while we can establish that violinists and collectors around the world cherish your work, we may not be able to establish that it will be in the national interest for you to build them in the US. This is a litmus test that must be met and we take great pains to avoid superficial validations that will not advance your case.
Means: Each plan contains a section that specifically addresses how your qualifications and your endeavor will further the national interest. If we cannot do this, it is of no advantage to you to have us write your plan.
Exceptional Ability
Validation: Again, like the evaluation of national importance, this is discretionary and so can be difficult to validate. One of the business plans we created was for an engineer who had created a breakthrough beneath-the-floor heating system. This cost-effective method was particularly suited to low-income housing and implementation as a retrofit to old buildings. The fact that it could be used as a component in adaptive reuse of a building made it of national importance in the US. A patent was pending on a system that he developed and his name was on the patent. Nonetheless, we believed that it was important that we establish beyond reasonable doubt that he was eligible for this visa.
Means: Aside from the verification that the patent was pending and validation that he had developed the heating system and the method for installation, other documentation was submitted. We presented his academic record and his advanced degree; a letter from his employer in his home country validating that he developed the system and the process of development at the Company; and recognition by the government for his achievement and how it would be used.
His EB2 NIW visa was approved.
Advanced Degree
Validation: An advanced degree is often one that is used for research and development for technology or the sciences. One of the business plans we created was for a biomedical researcher who was offered a position where she could work with a team developing a proprietary reagent to make in vitro diagnostics more accurate.
Means: In addition to validating her academic credentials, we did a full analysis of the research and how it would benefit and further diagnostic technology.
The Three Prongs and the Adjudicator's Guidelines
The image above is a link to our two-page download about the three-prong analytical framework used by adjudicators as guidance in evaluating EB2 NIW petitions. Below the three prongs are defined, accompanied by guidance for adjudicators.
Prong I: The Person’s Proposed Endeavor Has Both Substantial Merit and National Importance
Dhanasar Guidance: In determining whether the proposed endeavor has national importance, the USCIS considers its potential prospective impact. An undertaking may have national importance for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. But they do not evaluate prospective impact solely in geographic terms. Instead, they look for 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 importance” rather than “national in scope,” as used in NYSDOT, they seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ US workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.
Prong II: The Person is Well-Positioned to Advance the Proposed Endeavor
Dhanasar Guidance: The second prong shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but not limited to: the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.
The USCIS recognizes that forecasting feasibility or future success may present challenges to petitioners and USCIS officers, and that many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution.
They do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed. But notwithstanding this inherent uncertainty, in order to merit a national interest waiver, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.
Prong III: It Would Be Beneficial to the United States to Waive the Job Offer and Thus the Permanent Labor Certification Requirements
Dhanasar Guidance: The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. On the one hand, Congress clearly sought to further the national interest by requiring job offers and labor certifications to protect the domestic labor supply. On the other hand, by creating the national interest waiver, Congress recognized that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest. Congress entrusted the Secretary to balance these interests within the context of individual national interest waiver adjudications.
In performing this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified US workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. The USCIS emphasizes that, in each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
Why Work With Us?
Our work is due diligent and well-accepted by the USCIS. We create reasonable EB2 NIW Green Card Visa Business Plans that are among the best immigration business plans. They also represent you, your investment and your business as vital entrants into the United States economy. Our pricing is reasonable and begins at $1,850.
If you have received an EB2 NIW Business Plan RFE, get in touch with us: We are RFE experts.
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