What is the difference between “substantial merit” and “national importance” in NIW petitions?

The legal standard USCIS uses to determine whether a petition may be granted a “national interest waiver” (NIW) is a three-prong test announced in Matter of Dhanasar:

• The foreign national’s proposed endeavor has both substantial merit and national importance;
• The foreign national is well positioned to advance the proposed endeavor;
• On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

If all three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

This post will look closely at the first requirement, that a foreign national’s proposed endeavor must have both substantial merit and national importance. What does it exactly mean for a project to have “substantial merit,” and what does it mean for it to have “national importance”?

It is important to know the distinction between substantial merit and national importance, because an applicant’s project may satisfy only one of the two, and this will be insufficient to meet the requirement.

In most cases, an endeavor that has national importance will also have substantial merit. However, many endeavors that have substantial merit may not have national importance. Let’s consider a recent appeals case that made this distinction in the example of a civil engineer proposing to provide consulting services to improve US roads and highways.

Many endeavors that provide a positive value to society will be found to have “substantial merit.” An endeavor’s merit may be established without immediate or quantifiable economic impact.

In this case, the applicant proposed to offer consulting services to U.S. government and private companies to use his proprietary technology to assist clients to achieve maximum efficiency in their projects repairing roads and highways in the U.S.

The USCIS and AAO agreed this endeavor had substantial merit because it related to the improvement of U.S. roads and highways, which were the subject of national initiatives. Specifically, the Petitioner’s work offered substantial merit to the improvement of roads and highways specific to the individual customers or clients that would choose to hire his services.

However, not all endeavors that have substantial merit will also have national importance. The AAO emphasized: “In determining whether the proposed endeavor has national importance, we consider its potential prospective impact.” This means, the direct impact expected from the petitioner’s specific endeavor must rise to a broad, national level.

In this case, where the Petitioner proposed to provide specialized consulting services to companies and agencies in the roads and highways industry, insufficient evidence was provided on how Petitioner’s work would broadly affect the state of roads to a nationally significant degree.  Based on the evidence submitted, the AAO and USCIS found that the benefits would be limited to individual customers and clients choosing to hire Petitioner’s services.

Petitioner submitted reports and articles confirming that improving infrastructure, such as roads and highways, was a priority of the current Administration. However, without more information on the degree and breadth of the impact directly attributable to Petitioner’s specific work, national importance could not be supported.

Attorneys at Scott Legal have experience working with a variety of entrepreneurs and professionals considering a national interest waiver as a green card option. We are happy to help you review the facts specific to your case and evaluate the best way forward.