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I am a nurse. Can I succeed in my NIW application by saying there is a shortage of nurses in the United States, so it is in the national interest to retain me as a nurse?

A group of nurses smiling

I am a nurse. Can I succeed in my NIW application by saying there is a shortage of nurses in the United States, so it is in the national interest to retain me as a nurse?

The EB-2 National Interest Waiver category is one of the more malleable categories where great advocacy can tip the scales towards approval by persuasively arguing that the petitioner’s project is in the “national interest.” But the NIW is also a commonly misunderstood category in that what a lay-person thinks is intuitively in the “national interest” can sometimes be far from how USCIS interprets “national interest.”

Can labor shortage in a field (such as nursing) be sufficient grounds for national importance?

Labor shortage in a particular field, for example, is a common red herring. A recently released non-precedent case by the Administrative Appeals Office (AAO) rejected an appeal of a NIW denial for a petitioner, who was a highly experienced nurse, who proposed to work at U.S. hospitals to coordinate the provision of nursing services and provide specialized training to nurses and nurse technicians to improve their practices. This petitioner’s argument for national importance relied on the fact that there was a severe labor shortage for nurses in the midst of the COVID-19 crisis and the need to improve the lack of access to healthcare in certain communities.

In denying the appeal, the AAO emphasized that “the relevant question is not the importance of the industry, field, or profession in which an individual will work.” The first challenge with relying on labor shortage for the national interest prong is that USCIS may counter with an argument that this can be (and is designed to be) remedied by ordinary channels through the permanent labor certification program (PERM). The second challenge in focusing on the labor shortage is that it diverts attention away from the petitioner’s unique strengths and original contributions to his or her field, and the broad impact the petitioner’s unique approaches or achievements may make in advancing the petitioner’s field as a whole. In assessing national importance, the AAO explained that USCIS will focus on the “specific endeavor that the foreign national proposes to undertake,” and whether this endeavor has wide-ranging impacts beyond the petitioner’s immediate employer or clients.

In this case, the AAO found that the petitioner’s proposed endeavor to provide excellent nursing services and deliver high level of specialized training and coordination to nurses and nurse technicians, did not rise to the level of national importance because there was insufficient evidence to conclude that the work would benefit the field more broadly, beyond benefitting the specific hospital and clients the petitioner would be working for.

How can you improve the petition to increase the chance of approval in a case like this?

To defend the possible claim that a petitioner’s work only affects the petitioner’s immediate employer or clients, it is important to show substantial spillover effects. Original research, inventions, innovative business endeavors, or discoveries, for example, frequently contribute to advancing the best practices of a particular field as a whole or change the economic landscape in a significant way by acting as a catalyst for change.

It is also important to show ways in which the petitioner’s work to this date has affected the practice of other experts in his or her field. Invitation to speak at industry conferences, publication of studies on the cutting-edge techniques in one’s field, and published articles noting the originality of a petitioner’s particular approach can paint a picture that the petitioner is a “thought leader” in the field that has advanced the best practices of the field as a whole. This will be a persuasive basis to argue that his or her future work in the United States will result in broad improvements that affect many experts in that field, which checks the box for the “national importance” USCIS is looking for.

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