NIW Case Study – Entrepreneur in mental health sector

Despite the retrogression in priority dates, the EB-2 National Interest Waiver (NIW) category remains a popular choice for entrepreneurs and professionals in diverse industries. For many applicants the NIW can significantly shorten the time it takes to obtain a U.S. green card, because individuals can self-petition without a job offer; in addition, NIW applicants are exempt from the traditional process of labor certification requirement which can significantly lengthen the green card process.

In recent years we have seen more and more entrepreneurs in diverse industries submit petitions for a green card via the EB2 NIW category. However, there are unique challenges involved in NIW petitions filed by entrepreneurs, and a good number of entrepreneur cases reviewed in AAO appeals actually result in denial. This post will discuss a recent AAO appeals case by an entrepreneur in the mental health industry, which provides some valuable insights on what types of arguments and evidence would likely yield positive results on an NIW petition filed by an entrepreneur.

The applicant proposed that they would work in the US as an entrepreneur in the mental health industry through their company, which offers accessible online psychology consultations to provide quality mental health treatment to patients. In addition, the Petitioner proposed to launch a program for psychology interns and will use clinical research to advance psychological understanding in the United States. The AAO found that the Petitioner presented a proposed endeavor that had substantial merit.

The applicant argued that their proposed endeavor to provide mental health treatment had national importance because there is a growing demand for mental health solutions and the prevalence of mental illness across the nation as a whole. For example, the Petitioner cited statistics that one out of every five people had a mental illness in 2019, and that at the height of the pandemic, 40% of adults reported symptoms of anxiety or depression.

National statistics alone, however, were not enough to support that Petitioner’s activities themselves would have a broad enough impact to rise to the level of national importance. In determining national importance, the relevant question is not the importance of the industry or profession in which the individual will work, instead, the government focused on the specific endeavor the individual was proposing to undertake.

The important question was whether the Petitioner’s work as the president and lead psychologist of their company would impact the mental health industry more broadly rather than just benefitting their own company and its clients. The AAO suggested several types of supporting documents that could have been helpful for this argument:

• Sufficient explanation on how the company’s offerings would increase the qualifications of mental health professionals in the United States
• More details regarding the clinical research proposed by applicant, such as the research areas, research objects, any funding for research, how the research will be conducted, or objectives of research, which would help the government determine whether it would contribute to the expansion of psychological knowledge in the U.S.
• A detailed business plan, which provides the location of the company, service areas, target market, prospective clients, or other sufficient evidence that the company will provide mental health services in governmentally designated health professional shortage areas.
• Documentary evidence demonstrating that Petitioner’s business will otherwise have an impact on the mental health industry or the U.S. economy at a level commensurate with national importance.
• Evidence that Petitioner’s company will employ a significant population of workers in an economically depressed area.

Although the entrepreneur in this case did not present sufficient evidence to overcome the first requirement, that the proposed endeavor have substantial merit and national importance, the AAO opinion provides valuable information that could guide other entrepreneurs when considering and preparing an NIW petition.

As apparent from cases like these, not all arguments have equal traction when used in an NIW petition and careful presentation and strategy can make the difference between approval and denial of an otherwise meritorious case.  For this reason, partnering with an experienced team of attorneys that can help you frame the best argument for your case could be extremely helpful.

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What kinds of evidence can support my NIW proposed endeavor has substantial merit and national importance?

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