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How do you build an EB-2 NIW case?

Typically, an employment-based Green Card requires a job offer from a US employer as demonstrated by what is known as a Labor Certification. Typically, this Labor Certification is a process to prove that there are no qualified or available US workers for the position being offered and thus no US workers will be displaced by the foreign candidate.

In lieu of a Labor Certification, one may petition the government for a National Interest Waiver (of the Labor Certification). To request a National Interest Waiver (NIW), a foreign candidate must propose an endeavor of 1) substantial merit and 2) national importance and 3) be well positioned to advance that endeavor. USCIS will then inquire whether the impact or value of the job to be done by the foreign candidate (i.e. the proposed endeavor] is so heavily in the national interest that it outweighs the interests of the Labor Certification (i.e. proving there are no qualified or available US workers).  Examples of that “impact” are filling urgent needs, potential jobs creation resulting from the endeavor, or unique skills/knowledge sets that the PERM process cannot adequately address.

From the outset, before we can even talk about the nuts and bolts of the case we must first answer the predicate question: Is the NIW Petitioner either 1) an Alien of Exceptional Ability, or 2) A Member of the Professions Holding an Advanced Degree.

USCIS defines an Alien of Exceptional Ability as one two possesses at least three of the following: 1) Official academic record showing that you have a college degree, diploma, certificate, or similar award relating to your area of exceptional ability; 2) at least 10 years of full-time experience in your occupation;  3) a license to practice your profession or certification for your profession or occupation; 4) evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability; 5) membership in a professional association(s); and 6) recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations.

In real terms, most people applying for NIW cases will try to prove their qualifications as a Member of the Professions Holding an Advanced Degree rather than an Alien of Exceptional Ability.  USCIS defines Member of the Professions Holding an Advanced Degree as someone who possesses either 1) a Master’s degree or higher, or 2) a Bachelor’s degree and at least five years of progressive post-baccalaureate experience.

Now that we’ve walked through the front door  having proven we are either 1) an Alien of Exceptional Ability, or 2) A Member of the Professions Holding an Advanced Degree, USCIS welcomes us into the cauldron. Of utmost importance when building an EB-2 NIW case is to first define the proposed endeavor. This “Idea” is the foundation of the case and every item of documentation submitted in the filing should support the notion of this proposed endeavor. Here’s a quick example of a proposed endeavor from one of our recent NIW filings:

Engage healthcare facilities and providers–such as clinics, hospitals, and pharmacies–as well as pharmacy benefit management companies, and state boards of pharmacy to provide direct and/or consultative pharmaceutical expertise with the purpose of increasing health equity and education in geographic and/or demographic areas of decreased access to high-quality care.

When crafting a proposed endeavor, it is important to be strategic to narrowly focus that endeavor. Why might we do this? Our view is that it makes the argument of 1) national importance and 2) substantial merit that much easier to argue. Again, the proposed endeavor is the foundation of the case and every item of documentation submitted in the filing should support the notion of this proposed endeavor’s 1) substantial merit and 2) national importance. Once we’ve developed the idea of our proposed endeavor, we then venture to support the notions of substantial merit and national importance.

The term “substantial merit” is not defined by the Act or regulations. Ergo, absent a statutorily or regulatory definition, words must be given their plain, ordinary, and literal meaning. Because Congress and/or USCIS has affirmatively chosen not to define the term “substantial merit” in promulgating the applicable statute and/or regulations, the plain meaning of “substantial merit” is the de facto and de jure definition of that operative term. Therefore, when we build a case we try to demonstrate the proposed endeavor is real (not imaginary or illusory) and possesses substantial praiseworthy quality.

Officers must then examine the national importance of the specific endeavor proposed by considering its potential prospective impact. While Officers are tasked with considering the national importance of the proposed endeavor, officers should focus on the nature of the proposed endeavor, rather than the geographic breadth of the endeavor. For example, the endeavor “may have national importance because it has national or even global implications within a particular field, such as certain improved manufacturing processes or medical advances.” Economically, it may have “significant potential to employ U.S. workers” or “other substantial positive economic effects, particularly in an economically depressed area.”  When the authoritative evidence in the record indicates that an endeavor will help the United States to remain ahead of strategic competitors or current and potential adversaries, or relates to a field, including those that are research and development-intensive industries, i.e. where appropriate activity and investment, both early and later in the development cycle, may contribute to the United States achieving or maintaining technology leadership or peer status among allies and partners, USCIS shall consider such an endeavor as an endeavor of national importance.

Having proven the substantial merit and national importance of the proposed endeavor, USCIS will then inquire as to whether the Alien is well-positioned to carry out that endeavor. Here, USCIS is looking to see that the Alien has a background and/or exposure to this proposed endeavor. Let’s say I’m a world renowned dentist for twenty years but my proposed endeavor has to do with developing electric vehicles. USCIS is likely to conclude I’m not well-positioned to carry that out. Conversely, let’s say I’m a petroleum drilling engineer with considerable experience and my proposed endeavor relates to a new well technology. Here, USCIS is likely to conclude I am well-positioned to carry out that endeavor.

Finally, once we’ve shown that 1) we have exceptional ability or an advanced degree, 2) our proposed endeavor has substantial merit, 3) our proposed endeavor is of national importance, and 4) that the Alien is well-positioned to carry out that endeavor, USCIS will finally make the determination whether or not to waive the Labor Certification in the national interest, i.e. the National Interest Waiver.

When considering a discretionary grant of the national interest waiver, USCIS will assess whether the benefits provided to the nation by the Petitioner’s proposed endeavor outweigh the benefits that ordinarily flow from the permanent Labor Certification process. Therefore in considering whether it would be beneficial to the United States to waive the permanent Labor Certification requirements, USCIS will consider: 1) the impracticality of the labor certification process vis-à-vis the proposed endeavor, 2) the benefit to the United States of the Petitioner’s contributions, even if other U.S. workers are available; and most importantly, and 3) whether the national interest of the Petitioner’s contributions in areas of sufficient urgency for US competitiveness and/or STEM fields.

EB-2 NIW cases do not require an employer-sponsor; individuals can self-petition. Additionally, current PERM and “regular” I-140 processing times can be close to two years. With premium processing, an EB-2 NIW case can be obtained within about six weeks, thus drastically shortening the “wait time” for an available Green Card.

For more information, or for a detailed conversation regarding eligibility for a National Interest Waiver petition, please schedule a time to speak here.

By: Ryan A. Wilck, Partner and Attorney at Law

Ryan Wilck is a Managing Partner and attorney at Reddy & Neumann, P.C. with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy & Neumann, P.C. has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.

 We are committed to assisting our clients with navigating the complex PERM Labor Certification (ETA 9089 and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.