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Strategies for Securing the Elusive EB-2 National Interest Waiver

What Qualifies Someone for the EB2-NIW (There are No Right Answers but Many Wrong Ones)

Here's an embarrassing confession: the first time a client approached me about their NIW petition, I’d never even heard of EB-2. E-2 I knew by heart; EB-5, I’d certainly encountered it, but … EB-2, are you sure? I thought the prospect had made a typo, until Google set me straight.

In the decade since that initial encounter, writing plans to support this type of green card application has become second nature for us at Masterplans. But as immigration business plans go, the EB-2 is still enigmatic, not nearly as straightforward as charting someone’s investment on an E-2 investor visa or explaining why an L-1 executive needs to be in the U.S. to grow the new office. 

Part of this is the highly subjective nature of the precedent decision in Matter of Dhanasar, which — despite being an improvement over the strict standards in Matter of NYSDOT — leaves it entirely in the petitioner’s hands to prove that their contributions here will substantially benefit the country and justify a waiver of the traditional PERM labor certification process. 

Worse still, I’m not sure the standards are consistently applied, which perhaps gives false hope to some who mistakenly believe this is a surefire path to a green card. (Let’s just say, I’ve heard “this worked for my friend” more than once.) On the contrary, proving eligibility for a national interest waiver is a high hurdle, and not all applicants have the legs for it.

Key Takeaways:
  • The EB-2 National Interest Waiver green card is becoming increasingly popular — nearly 60,000 total EB-2s were granted last year
  • The criteria USCIS uses to adjudicate EB-2 applications are more subjective than those used to adjudicate most other types of immigration petitions
  • By articulating the applicant’s endeavor through market research and financial forecasting, a business plan will strengthen an EB-2 case, but it cannot guarantee approval

If you’re an attorney reading this, you can probably recite Dhanasar’s three prongs for establishing NIW green card eligibility verbatim. Established in December 2016, this precedent decision cemented the guidelines that USCIS is meant to apply when judging someone’s EB-2 NIW filing:

  • Prong 1: The foreign national’s proposed endeavor has both substantial merit and national importance; and
  • Prong 2: The foreign national is well-positioned to advance the proposed endeavor; and
  • Prong 3: On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus a labor certification.

In casual conversation with applicants, I often fold these rules into two big considerations to ponder: 

  1. Is your contribution here super important, and 
  2. Do you have the background, education and credentials to pull it off? 
This is an oversimplification, but “What are you doing here and why does it matter?” is where you need to start. 

I asked Austin, Texas-based immigration attorney Kalani Hawks Villafranca of Hawks Villafranca Law what she looks for in a case: “The absolute most important thing is for a potential client to have a clearly articulated proposed endeavor, which typically means either an existing job or concrete job offer or a business they already operate or have plans to open imminently. Without a proposed endeavor the immigrant will pursue in the U.S., there is no NIW case.” 

I wanted to better understand her process for gauging the likely approvability, and she obliged:

“I talk with the potential client and we go through the three prongs established in the Dhanasar case very carefully, ensuring the client can articulate their proposed endeavor along the way. To prove national importance I like to think about what government body cares about this topic — are there any pending bills in Congress, recent GAO reports, local or regional government agencies, etc., that deal with the potential client’s proposed endeavor, industry, or the problem the immigrant is trying to solve? If I can show the local, state, or national government cares about this issue, I can likely make a compelling argument that this proposed endeavor is in the national interest. 

“To understand if the immigrant is well-positioned to advance the endeavor, we talk about the work the person has done in the past, identify any current or future clients who have expressed interest in their work, and review any active or pending contracts for work that will further the proposed endeavor. 

“Lastly I think about what arguments we can make to show a waiver is needed and that this waiver is in the national interest of the United States. Many people skip this step, but you can’t forget this is the crux of the case. You actually have to prove the waiver of the labor certification is needed based on things like urgency, uniqueness of the candidate, U.S. interest in STEM fields, etc. The USCIS policy manual and the recent STEM memo are good places to start to understand what kinds of arguments might fit your case.”

In short, an applicant needs to be well-positioned to make a meaningful impact in the U.S. 

It sounds obvious, but if you’re not sure what you’d be doing in the States, or who would hire someone with your skillset, or whether your startup fulfills a market need, you probably need to go back to step 1 and think about how to build yourself a better profile to match the NIW criteria.

I want to return briefly to my clumsy introduction to EB-2. Considering what’s going on with these applications today, that petitioner’s case feels suddenly important: He was a medical doctor and university professor from Central Asia. He was a recognized researcher in his field, and held patents related to a health monitoring device, which was the basis of his petition. His plan for the U.S. was to finalize, test, and market this invention as a mobile app, which objectively had the potential to save tens of thousands of lives every year. (I’m being vague intentionally, as I did not ask this person’s permission to share details, but believe me, it was a cool app. This dude was impressive.) I naively figured his case was a slam dunk, but … it wasn’t. His lawyer struggled to get him the approval, first answering an RFE and then receiving a (to me, shocking) denial. This client did ultimately get approved after refiling, but the amount of headache endemic in this process is seared into my memory.

The same holds true for the next NIW client who hired us, another case I remember vividly. When he called Masterplans and got patched through to my cell phone, I was playing hooky at the Oregon Zoo with my daughter, then just a toddler. This was long before “WFH” became the norm, and I was terrified he would hear her babbling in the background (she’s in middle school now, still quite chatty). Anyway, this person had years of expertise in the energy sector and had developed an innovation in HVAC which promised to dramatically reduce energy use in residential buildings. His resume was impressive, his prototype compelling, and his attorney built a winning case — frankly, they may have been able to do so without an accompanying business plan from us, but the client wanted to leave nothing to chance. When he emailed me many months later to say he’d been approved, I genuinely felt good for the country — an intangible thing, to be sure, but proof-positive of his merit. These early business plan assignments set my expectations for what sort of foreign nationals were pursuing the NIW.

But that was 2012. Today, the floodgates have opened. 

EB-2’s popularity is booming, partly because it’s one of the few ways someone can self-petition for a green card, but also because it’s almost certainly being misrepresented in some circles as an easy path for those without a sponsoring employer to stay here long-term. 

I have talked to teachers, pilots, fashion students, martial arts instructors, freelance marketers and even a person making leather handbags at home, all of whom were desperate for an EB-2 approval and trying to answer an RFE (surprise, surprise). Historically, EB-2s are just a fraction of our immigration business, but NIW candidates have accounted for nearly 14% of our projects through the end of Quarter 3.

 

NIW-blog

 

But a business plan is no silver bullet. There were 59,741 EB-2 visas (standard and NIW) issued last year according to the U.S. Department of State, but I suspect very few NIWs were awarded to daycare workers, bodybuilders or dental hygienists, all potential cases referred to Masterplans in 2022. (Now perhaps these people did have strong cases, or potential angles for argument that would put their abilities or business interests in a favorable light with USCIS, but it seemed more likely that they each faced a steep path uphill.) I am a business plan writer at heart, so I believe having a coherent plan is important. Working with professionals to build a business plan can help an applicant gather data on their industry, assess the target market, itemize startup expenses, and develop accurate assumptions to project revenues. This is useful information for anyone entering the U.S. market, and I always encourage people to do their homework. But it would be disingenuous to characterize a business plan as a necessity in all cases, or as some magical way to overcome a shortcoming in merit. There is no guarantee in these cases, even for highly-qualified applicants, and even for candidates who present a thoughtful plan. 

The best advice is to think carefully through the Dhanasar prongs and how they apply to your proposed endeavor, and then to seek out qualified legal counsel — with U.S. immigration law, the “DIY approach” rarely works in your favor.

To that end, U.S. immigration attorney Kalani Hawks Villafranca urges applicants to focus on the future, because past successes — even if achieved while in the U.S. on other visas — won’t be sufficient for EB-2 NIW. She also cautions that it’s a common misconception that a labor shortage like we’re experiencing now is helpful for NIW; unfortunately, it’s no easier to get approvals when the job market is tight. “Labor shortage is the standard for PERM cases, and is not relevant to proving eligibility for an EB-2 national interest waiver green card,” Kalani tells me.

Not every NIW case can be a winner, no matter how much effort goes into it.

So if you’re a foreign national considering EB-2 in the National Interest Waiver category, get your paperwork in order, hire an attorney, and find a clear way to articulate how your expertise or vision for a U.S. business will be nationally impactful. If you’re an attorney in this field, it’s essential to vet prospective clients before sending them your fee agreement.

But for the right candidates, the EB-2 NIW is an excellent path and perhaps the only chance for a green card. In those cases, a well-articulated business plan can mean the difference between a lengthy review process and a short one.

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