National Interest Waivers / EB-2 Green Card Category
Our immigration law firm fights for "National Interest Waivers" for many of our clients. The Immigration and Nationality Act ("INA") created a category of immigrants who wish to immigrate to the United States based on their holding advanced degrees or their equivalent, and individuals of exceptional ability in the arts, sciences, or business. This category is known as the second employment-based, or "EB-2", immigrant category.
In order to immigrate to the United States, an EB-2 immigrant typically must have a job offer and an approved Labor Certification application. However, foreign nationals who fall within this category may have the job offer and labor certification requirements waived by USCIS if the foreign national's presence in the United States is considered to be in the "national interest." An immigrant in this situation is seeking a "national interest waiver" to the labor certification requirement.
Although an foreign national may petition for himself when seeking a national interest waiver, the USCIS is more likely to grant such a waiver when the foreign national's services are being sought by an employer within the United States.
To learn whether you may be eligible for a national interest waiver please contact our office for a free consultation. Please have a current CV available for our attorney to review with you, including any awards, publications, citations, and presentations.
Who qualifies for a National Interest Waiver?
In order to qualify for a national interest waiver, a foreign national must show a number of things. First, the foreign national must be an "advanced degreed professional." An advanced degree is considered to be a U.S. master's degree or an equivalent foreign degree or higher (i.e. PhD, MD, JD etc.). If a foreign national does not possess an advanced degree, he may still be eligible for the EB-2 category if he is an "alien of exceptional ability" in the arts, science or business.
In addition to being a member of one of the above two immigrant categories, the foreign national must prove that their contributions significantly benefit the US national interest. The foreign national must contribute on a national level, and not just to a specific community. The following are examples of grounds we have successfully used as the basis for the granting of a national interest waiver:
-Improving the U.S. economy
-Improving the wages and working conditions of U.S. workers
-Improving education and training programs for U.S. children and under-qualified workers
-Improving health care in the U.S.
-Providing more affordable housing for young and/or older, poorer U.S. residents
-Improving the environment of the United States and making more productive use of natural resources
-A request from an interested U.S. Government Agency
The Three Prongs
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.
USCIS may grant a national interest waiver as a matter of discretion if the petitioner demonstrates eligibility by a preponderance of the evidence, based on the following three prongs:
(1) The person’s proposed endeavor has both substantial merit and national importance;
(2) The person is well positioned to advance the proposed endeavor; and
(3) On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.
First Prong: The Proposed Endeavor has both Substantial Merit and National Importance
When reviewing the proposed endeavor, officers determine whether the evidence presented demonstrates, by a preponderance of the evidence, the proposed endeavor has substantial merit and national importance. The term “endeavor” is more specific than the general occupation; a petitioner should offer details not only as to what the occupation normally involves, but what types of work the person proposes to undertake specifically within that occupation. For example, while engineering is an occupation, the explanation of the proposed endeavor should describe the specific projects and goals, or the areas of engineering in which the person will work, rather than simply listing the duties and responsibilities of an engineer.
The endeavor’s merit may be demonstrated in areas including, but not limited to, business, entrepreneurship, science, technology, culture, health, or education.
In addition, officers may consider evidence of the endeavor’s potential significant economic impact, but “merit may be established without immediate or quantifiable economic impact” and “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.”
Officers must also examine the national importance of the specific endeavor proposed by considering its potential prospective impact. Officers should focus on the nature of the proposed endeavor, rather than only the geographic breadth of the endeavor.
For example, the endeavor “may have national importance because it has national or even global implications within a particular field, such as certain improved manufacturing processes or medical advances.” Economically, it may have “significant potential to employ U.S. workers” or “other substantial positive economic effects, particularly in an economically depressed area.” Therefore, petitioners should submit a detailed description explaining the proposed endeavor and supporting documentary evidence to establish that the endeavor is of national importance.
In determining national importance, the officer’s analysis should focus on what the beneficiary will be doing rather than the specific occupational classification. Endeavors such as classroom teaching, for example, without broader implications for a field or region, generally do not rise to the level of having national importance for the purpose of establishing eligibility for a national interest waiver.
Ultimately, if the evidence of record demonstrates that the person’s proposed endeavor has the significant potential to broadly enhance societal welfare or cultural or artistic enrichment, or to contribute to the advancement of a valuable technology or field of study, it may rise to the level of national importance.
Second Prong: The Person is Well Positioned to Advance the Proposed Endeavor
Unlike the first prong, which focuses on the merit and importance of the proposed endeavor, the second prong centers on the person. Specifically, the petitioner must demonstrate that the person is well positioned to advance the endeavor.
In evaluating whether the person is well positioned to advance the endeavor, USCIS considers factors including, but not limited to:
The person’s education, skills, knowledge, and record of success in related or similar efforts;
A model or plan that the person developed, or played a significant role in developing, for future activities related to the proposed endeavor;
Any progress towards achieving the proposed endeavor; and
The interest or support garnered by the person from potential customers, users, investors, or other relevant entities or persons.
The petitioner should submit evidence to document the person’s past achievements and corroborate projections related to the proposed endeavor to show that the person is well-positioned to advance the endeavor. A person may be well-positioned to advance an endeavor even if the person cannot demonstrate that the proposed endeavor is more likely than not to ultimately succeed. However, unsubstantiated or implausible claims would not meet the petitioner’s burden of proof.
Below is a non-exhaustive list of the types of evidence that tend to show that the person is well positioned to advance a proposed endeavor. This list is not meant to be a checklist or to indicate that any one type of evidence is either required or sufficient to establish eligibility.
Evidence that may demonstrate that the person is well-positioned to advance a proposed endeavor includes, but is not limited to:
Degrees, certificates, or licenses in the field;
Patents, trademarks, or copyrights developed by the person;
Letters from experts in the person’s field, describing the person’s past achievements and providing specific examples of how the person is well positioned to advance the person’s endeavor;
Published articles or media reports about the person’s achievements or current work;
Documentation demonstrating a strong citation history of the person’s work or excerpts of published articles showing positive discourse around, or adoption of, the person’s work;
Evidence that the person’s work has influenced the field of endeavor;
A plan describing how the person intends to continue the proposed work in the United States;
A detailed business plan or other description, along with any relevant supporting evidence, when appropriate;
Correspondence from prospective or potential employers, clients, or customers;
Documentation reflecting feasible plans for financial support (see below for a more detailed discussion of evidence related to financing for entrepreneurs);
Evidence that the person has received investment from U.S. investors, such as venture capital firms, angel investors, or start-up accelerators, and that the amounts are appropriate to the relevant endeavor;
Copies of contracts, agreements, or licenses showing the potential impact of the proposed endeavor;
Letters from government agencies or quasi-governmental entities in the United States demonstrating that the person is well positioned to advance the proposed endeavor (see below for a more detailed discussion of supporting evidence from interested government agencies and quasi-governmental entities);
Evidence that the person has received awards or grants or other indications of relevant non-monetary support (for example, using facilities free of charge) from federal, state, or local government entities with expertise in economic development, research and development, or job creation; and
Evidence demonstrating how the person’s work is being used by others, such as, but not limited to:
Contracts with companies using products that the person developed or assisted in developing;
Documents showing technology that the person invented, or contributed to inventing, and how others use that technology; and
Patents or licenses for innovations the person developed with documentation showing why the patent or license is significant to the field.
In each case, officers must consider the totality of circumstances to determine whether the preponderance of evidence establishes that the person is well positioned to advance the proposed endeavor.
Third Prong: On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements
Once officers have determined that the petitioner met the first two prongs, they proceed with the analysis of the third prong. This last prong requires the petitioner to demonstrate that the factors in favor of granting the waiver outweigh those that support the requirement of a job offer and thus a labor certification, which is intended to ensure that the admission of foreign workers will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.
While Congress sought to further the national interest by requiring job offers and labor certifications to protect U.S. workers, Congress also recognized that in certain instances the national interest is better served by a waiver of the job offer and thus the labor certification requirement. In such cases, a national interest waiver outweighs the benefits inherent to the labor certification process, which primarily focuses on a geographically limited labor market. Within the context of national interest waiver adjudications, Congress entrusted the Secretary of Homeland Security to balance this interest.
Therefore, for the third prong, an officer assesses whether the person’s endeavor and the person being well-positioned to advance that endeavor, taken together, provide benefits to the nation such that a waiver of the labor certification requirement outweighs the benefits that ordinarily flow from that requirement. For example, in the case of an entrepreneur, where the person is self-employed in a manner that generally does not adversely affect U.S. workers, or where the petitioner establishes or owns a business that provides jobs for U.S. workers, there may be little benefit from the labor certification.
Therefore, in establishing eligibility for the third prong, petitioners may submit evidence relating to one or more of the following factors, as outlined in Matter of Dhanasar:
The impracticality of a labor certification application;
The benefit to the United States from the prospective noncitizen’s contributions, even if other U.S. workers were also available; and
The national interest in the person’s contributions is sufficiently urgent, such as U.S. competitiveness in STEM fields.
More specific considerations may include:
Whether urgency, such as public health or safety, warrants foregoing the labor certification process;
Whether the labor certification process may prevent an employer from hiring a person with unique knowledge or skills exceeding the minimum requirements standard for that occupation, which cannot be appropriately captured by the labor certification;
Whether the person’s endeavor has the potential to generate considerable revenue consistent, for example, with economic revitalization; and
Whether the person’s endeavor may lead to potential job creation.
Specific Evidentiary Considerations for Persons with Advanced Degrees in Science, Technology, Engineering, or Mathematics (STEM) Fields
There are specific evidentiary considerations relating to STEM degrees and fields, although the analysis is the same regardless of endeavor, so these considerations may apply in non-STEM endeavors where the petitioner demonstrates that such considerations are applicable. USCIS recognizes the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.
To identify a critical and emerging technology field, officers consider governmental, academic, and other authoritative and instructive sources, and all other evidence submitted by the petitioner. The lists of critical and emerging technology subfields published by the Executive Office of the President, by either the National Science and Technology Council or the National Security Council, are examples of authoritative lists. Officers may find that a STEM area is important to competitiveness or security in a variety of circumstances, for example, when the evidence in the record demonstrates that an endeavor will help the United States to remain ahead of strategic competitors or current and potential adversaries, or relates to a field, including those that are research and development-intensive industries, where appropriate activity and investment, both early and later in the development cycle, may contribute to the United States achieving or maintaining technology leadership or peer status among allies and partners.
With respect to the first prong, as in all cases, the evidence must demonstrate that a STEM endeavor has both substantial merit and national importance. Many proposed endeavors that aim to advance STEM technologies and research, whether in academic or industry settings, not only have substantial merit in relation to U.S. science and technology interests, but also have sufficiently broad potential implications to demonstrate national importance. On the other hand, while proposed classroom teaching activities in STEM, for example, may have substantial merit in relation to U.S. educational interests, such activities, by themselves, generally are not indicative of an impact in the field of STEM education more broadly, and therefore generally would not establish their national importance.
For the second prong, as mentioned above, the person’s education and skillset are relevant to whether the person is well positioned to advance the endeavor. USCIS considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security, an especially positive factor to be considered along with other evidence for purposes of the assessment under the second prong.
Persons with a Ph.D. in a STEM field, as well as certain other persons with advanced STEM degrees relating to the proposed endeavor, have scientific knowledge in a narrow STEM area since doctoral dissertations and some master’s theses concentrate on a particularized subject matter. Officers should then consider whether that specific STEM area relates to the proposed endeavor. Even when the area of concentration is in a theoretical STEM area (theoretical mathematics or physics, for example), it may further U.S. competitiveness or national security as described in the proposed endeavor.
Examples of evidence that can supplement the person’s education are listed above, but a petitioner may submit any relevant evidence, including letters from interested government agencies as discussed below, to show how the person is well positioned to advance the proposed endeavor. A degree in and of itself, however, is not a basis to determine that a person is well positioned to advance the proposed endeavor.
Finally, with respect to the third prong, it is the petitioner’s burden to establish that factors in favor of granting the waiver outweigh those that support the requirement of a job offer and thus a labor certification.
When evaluating the third prong and whether the United States may benefit from the person’s entry, regardless of whether other U.S. workers are available (as well as other factors relating to prong three discussed above, such as urgency), USCIS considers the following combination of facts contained in the record to be a strong positive factor:
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 area important to U.S. competitiveness; and
The person is well positioned to advance the proposed STEM endeavor of national importance.
The benefit is especially weighty where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness, or when the petition is supported by letters from interested U.S. government agencies as discussed in the section below.
The Role of Interested Government Agencies or Quasi-Governmental Entities
While not required, letters from interested government agencies or quasi-governmental entities in the United States (for example federally-funded research and development centers) can be helpful evidence and, depending on the contents of the letters, can be relevant to all three prongs. Specifically, letters from an interested government agency or quasi-governmental entity could prove favorable for purposes of the first prong if, for example, they establish that the agency or entity has expertise in the proposed endeavor and that the proposed STEM endeavor promises to advance a critical and emerging technology or is otherwise important for purposes of maintaining the United States’ technological prominence.
Detailed letters of government or quasi-governmental interest that provide relevant information about how well-positioned the person is to advance the endeavor are valuable for purposes of assessing the second prong. Finally, an interested government agency or quasi-governmental entity can help explain how granting the waiver may outweigh the benefits of the job offer and labor certification requirement by explaining a particular urgency or detailing how the United States would benefit from the prospective noncitizen’s contributions, even if other U.S. workers are available.
Specific Evidentiary Considerations for Entrepreneurs
There may be unique aspects of evidence submitted by an entrepreneurial petitioner undertaking a proposed endeavor, including through an entity based in the United States in which the petitioner typically possesses (or will possess) an ownership interest, and in which the petitioner maintains (or will maintain) an active and central role such that the petitioner's knowledge, skills, or experience would significantly advance the proposed endeavor.
When evaluating whether such petitions satisfy the three-pronged framework, officers may consider the fact that many entrepreneurs do not follow traditional career paths and there is no single way in which an entrepreneurial start-up entity must be structured.
In addition to the more generally applicable evidence described above, an entrepreneur petitioner may submit the following types of evidence 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.
Evidence of Ownership and Role in the U.S.-Based Entity
The petitioner may have an ownership interest in an entity based in the United States, of which the petitioner may also be the founder or co-founder. The petitioner may also play an active and central role in the operations of the entity as evidenced by the petitioner’s appointment as an officer (or similar position of authority) of the entity or in another key role within the entity. Such evidence may have probative value in demonstrating the petitioner is well positioned to advance the endeavor.
Degrees, Certifications, Licenses, Letters of Experience
This evidence may indicate that the petitioner has knowledge, skills, or experience that would significantly advance the proposed endeavor being undertaken by the entity. Education and employment history, along with other factors related to the petitioner’s background, may serve to corroborate the petitioner’s claims. Some examples include 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. This investment may come from persons, such as angel investors, or established organizations, such as venture capital firms. Because different endeavors have different capital needs, USCIS also considers the amount of capital that would be appropriate to advance the endeavor in determining whether the petitioner has secured sufficient investments.
Incubator or Accelerator Participation
Incubators are private or public entities that provide resources, support, and assistance to entrepreneurs to foster the growth and development of an idea or enterprise. Accelerators are generally private venture capital entities and focus on helping entrepreneurs and their start-ups speed the launch, growth, and scale of their businesses.
Officers may consider evidence of an entrepreneur’s admission into an incubator or accelerator 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 submit evidence of the past success of the incubator for officers to consider when evaluating this evidence.
Awards or Grants
Relevant funds may come from federal, state, or local government entities with expertise in economic development, research and development, or job creation. In addition, awards or grants may be given by other entities, such as policy or research institutes. Like investment from outside investors, this evidence 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.
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. The petitioner should submit evidence to document how the petitioner contributed to the development of the intellectual property and how it has or may be used internally or externally.
Published Materials about the Petitioner, the Petitioner’s U.S.-Based Entity, or Both
Relevant published materials may consist of printed or online newspaper or magazine articles or other similar published materials evidencing that the petitioner or the petitioner’s entity, with some reference to the petitioner’s role, has received significant attention or recognition by the media. Petitioners may submit evidence of the media outlet’s reputation for officers to consider when evaluating this evidence.
Revenue Generation, Growth in Revenue, and Job Creation
Relevant growth metrics 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. Such evidence may include a showing that the entity has exhibited growth in terms of revenue generation, jobs created in the United States, or both, and the petitioner’s contribution to such growth.
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
Letters may be from, for example, relevant government entities, outside investors, or established business associations with knowledge of:
The research, products, or services developed by the petitioner, the petitioner’s entity, or both; or the petitioner’s knowledge, skills, or
Experience that would advance the proposed endeavor.
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.
Additionally, the merits of the entrepreneur’s business, business plan, product, or technology may undergo various forms of review by third parties, such as prospective investors, retailers, or other industry experts. Accordingly, letters and other statements from relevant third-party reviewers, may have probative value in demonstrating the substantial merit and national importance of the endeavor and that the individual is well positioned to advance the endeavor.
Generally, many entrepreneurial endeavors are measured in terms of revenue generation, profitability, valuations, cash flow, or customer adoption. However, other metrics may be of equal importance in determining whether the petitioner has established each of the three prongs.
As noted in Matter of Dhanasar, “many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution.” Accordingly, petitioners are not required to establish that the proposed endeavor is more likely than not to ultimately succeed based solely on the typical metrics used to measure entrepreneurial endeavors (although such showings may be considered favorably).
They instead need to show that the proposed endeavor has both substantial merit and national importance, that the petitioner is well positioned to advance the proposed endeavor, and 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.
Evidence establishing the petitioner’s past entrepreneurial achievements and that corroborates projections of future work in the national interest are favorable factors. Claims lacking corroborating evidence are not sufficient to meet the petitioner’s burden of proof. As in all cases, officers must consider the totality of circumstances to determine whether each of the three prongs is established by a preponderance of the evidence.
"Immigration Law is a mystery and a master of obfuscation, and the lawyers who can figure it out are worth their weight in gold." - Karen Kraushaar, INS Spokesperson, Washington Post, April 2001