Before December of 2016, the National Interest Waiver EB-2 green card was seen by most as an unattainable dream. With a court decision in December though (Matter of Dhanasar), things changed and the landscape for applying for a National Interest Waiver (NIW) opened up and petitions are now regularly being approved under the new standard. The changes impact all categories but especially entrepreneurs.
An NIW is a green card petition that falls under the employment-based second preference (“EB-2”) category. Normally in this category an employer must go through a PERM labor certification process where they undertake a recruiting exercise to show that qualified U.S. workers are not available for the position. This PERM process is time consuming and expensive. For NIW petitions though, an applicant can self-petition and the labor certification requirement is waived. To be eligible for an NIW green card the applicant must hold an advanced degree or have exceptional ability and work experience. The foreign national’s employment must also be deemed to be in the “national interest” and the old and new NIW standards are summarized below.
The Old National Interest Waiver (NIW) Standard
Prior to the Dhanasar decision, the qualifications for a NIW were governed by a three prong test from another case. Under this old test, the applicant needed to demonstrate the following:
(1) the area in which the foreign national seeks employment is of substantial intrinsic merit;
(2) the prospective benefit of the foreign national’s services is national in scope; and
(3) the national interest would be adversely affected if a labor certification were required. That is, the foreign national will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
The old standard proved very problematic and applicants found it particularly difficult to satisfy the third prong. Also, proving “national in scope” meant that an applicant had to impact a wide geographic area. Many saw this category as one for applicants that for example created a life-saving vaccine or someone like Albert Einstein. After years of dealing with the challenging standard, a new case (Dhanasar) articulated a new standard that is clearer and provides for enhanced flexibility. In addition, the new case and NIW standard opens up the possibility of filing NIW petitions for entrepreneurs which is something that was not often done in the past.
The New National Interest Waiver (NIW) Standard
The new standard is summarized here:
- The foreign national’s proposed endeavor has both substantial merit and national importance (now national importance is used which was changed from “national in scope” which was expansive & this prong combines the previous two prongs).
- The foreign national is well positioned to advance the proposed endeavor. (New element but one that looks at the applicant’s education and accomplishments)
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. (Significant change and relaxation of this prong and introduction of more flexibility)
- The foreign national’s proposed endeavor has both substantial merit and national importance
For the first factor, the new standard requires that the applicant show that the proposed endeavor has both substantial merit and national importance. As such, the discussion related to substantial merit should be focused on the specific endeavor that the foreign national proposes to undertake. This may be demonstrated in a number of areas, including business and entrepreneurship. It is not necessary to show that the substantial merit has an immediate or qualifiable impact although this of course would be helpful.
To assess national importance, the new standard considers the potential prospective impact. For example, an applicant may have developed something that could provide a significant benefit to the world of science, medicine or business even if what has been developed has not done that yet. Another key thing to note is that the assessment of national importance is not limited to solely geographic terms. Instead, one would look at much broader implications and factors that may support national importance. As such, even ventures that focus just on one area of the U.S. could qualify. In particular, for entrepreneurs, a venture that would employ U.S. workers (in particular in an economically depressed area) could rise to the level of national importance. In the past, national in scope usually meant a broad geographic area.
- The foreign national is well positioned to advance the proposed endeavor
For the second requirement, the applicant must show that he/she is well positioned to advance the proposed endeavor. As such, the focus here is on the person. To prove this element, factors such as education, skills, knowledge and accomplishments are examined. Other considerations include an assessment of the plan for future activities and any progress made towards this and/or interest from others (eg. investors). It is not necessary to show that the endeavor is more likely than not to succeed but the applicant must demonstrate that they are well positioned to advance the 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.
For the third requirement, the applicant must demonstrate that on balance, it would be beneficial to the US to waive the requirements of a job offer and thus of a labor certification. One consideration here is that Congress implemented the PERM and Labor Certification process to protect U.S. jobs and this is viewed as important. Congress also created the NIW category though to recognize that the U.S. would benefit from giving green cards to individuals that qualify. This last prong attempts to balance these two ideas. This is an area that requires careful analysis and arguably one aspect of the new standard that has changed the most. That is, in the past, although a balancing test standard existed, it was very difficult to produce evidence sufficient to overcome it. The big change in the standard is that the new standard in Dhanasar “does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.”
You can see another article on the new NIW standard by clicking here.
The new standard provides more flexibility under the NIW standard and opens a door for entrepreneurs and other NIW petitions. The standard is still new but we have started to see approvals under the new standard. Careful examination, assessment and compilation of a case is essential. Scott Legal, P.C. processes NIW petitions and can guide you through your case.
To find out more about the new rules or other investor visas, contact Scott Legal, P.C.
Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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