Let’s talk about green card opportunity with national waiver interest. What is called NIW – which was SO HARD to get – is now NO LONGER an Issue. One can apply independently WITHOUT an employer! This is opening a door to ALL of you who so wanted this and now you can actually get it. Below you will find details about it.The AAO’s new decision in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) has now given us a three relatively clear criterion to meet the standard of National Interest.
1. “The foreign national’s proposed endeavor has both substantial merit and national importance.”
2. “The foreign national is well positioned to advance the proposed endeavor.”
3. “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 these three elements are satisfied, USCIS may approve the National Interest Waiver as a matter of discretion.
What Do Each of These Criteria Mean?
The first criteria for green card opportunity with national waiver interest can be met by showing that the person’s work has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. The good news is that USCIS is moving away from geography as a definition of “national.” Even better, the AAO gives an example of how an entrepreneur can qualify for the NIW: “an endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance,” as one which can satisfy this criteria.
The second criteria for green card opportunity with national waiver interest shifts the focus to the foreign national. Does the applicant have the “education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.” The applicant must show that they are in a good position to succeed in their plan. This new criteria is an excellent change from the current standard.
The third and final criteria for green card opportunity with national waiver interest is the most important and far reaching change. The petitioner must demonstrate 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.” The USCIS will evaluate the application using such factors as “whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification.” For an entrepreneur, it would be impractical to do a labor certification, as they own the company. And one can even argue that “even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.”
This decision for green card opportunity with national waiver interest is far reaching and it is now far more flexible for applicants going forward to qualify for the EB-2 Visa, National Interest Waivers than it has been in the past.
Matter of Dhansar sets three new options:
- That the foreign national’s proposed endeavor has both substantial merit and national importance: This can apply to any discipline/industry and the decision specifically mentions business and entrepreneurship, good news for startup founders!
With regard to ‘substantial merits” the decision mentions that the emphasis will be on ‘potential impact’ and the applicant doesn’t need to show “immediate or quantifiable economic impact”. This is very helpful and much more than I was expecting. When it came to startup founders and NIW guidance, I was expecting to see requirements on how much money must have been raised, revenue generated and/or jobs created. With this standard, demonstrating the potential impact may satisfy the test. While funds raised, revenue and job creation may well be part of the evidence to submit to show impact, we do not have to show set amount of money or jobs.
Regarding ‘national importance”- the decision makes clear than geography is not important anymore- as it was in the old case which had a test of ‘national in scope’. Now we can focus on “broader implications”. The decision gives the example that economic development in depressed areas can have national importance. So, we can show local economic impact as is the case with many startups especially in the early stages.
- That the foreign national is well positioned to advance the proposed endeavor: The emphasis here changes from the ‘work’ (proposed endeavor) to the ‘individual applicant’ (foreign national). The decision makes clear that applicant’s background, skills, experience, record of past success and future potential will be taken into account. This will include demonstrating that the applicant can make progress on the work and to show that, one can have evidence of “customers, users, investors and other relevant entities and individuals.” I find it very interesting that the use of ‘investor’ is included here clearly keeping entrepreneurship and founders in mind.
- 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. Unlike the previous law in which we had to show that losing the applicant would harm the US, now we can show that the applicant will be beneficial to the US. USCIS will evaluate applicant’s background and work impact to see if it will be ‘impractical” to get a job offer or labor certification and whether it is ‘sufficiently urgent’ to waive the labor certification. USCIS will take all factors into consideration and will make a decision on balance.
For green card opportunity with national waiver interest, if all three criteria are met, the USCIS can approve the case at its discretion. The above criteria for green card opportunity with national waiver interest are much clearer and give concrete examples. The case shifts overall focus to the individual and the impact the person will make. While all NIW applicants and employers will benefit, startup founders and entrepreneurs applying for visas in the USA will specifically benefit from this new law.
