The National Interest Waiver is one of the most competitive green card applications. This is because the USCIS, in approving this self-petition, will waive the requirements that most foreign national employment applicants have to go through—receiving Department of Labor (DOL) certification on behalf of a prospective worker and also not requiring a direct employer to fill out an I-140 and sponsor an intending immigrant.
As such, one of the most difficult aspects of having your NIW application approved is due to the applicant not being able to prove that their past successes or record of employment will lead to meaningful projected benefits once they are in the United States. This matter has been disputed in U.S. courts and amongst immigration analysts and other academics who are interested in the burden of proof needed to establish ones case for a NIW.
Making a Business Case
As of 2016 that burden of proof that was needed in order to prove one’s worth in the NIW application process changed due to a court case brought forth by the New York State Department of Transportation (NYSDOT). The case stated, in relation to the national interest waiver applicant, that, “…the petitioner must be able to demonstrate that they will assist the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications”. However, this case was overturned in The Matter of Dhanasar, whereby defendants argued that this burden of proof was too high, and also too confusing for applicants who were self-employed or entrepreneurs.
In other words, The Matter of Dhanasar case de-emphasized NYSDOT’s focus on the geographical scope of the proposed endeavor and does not require comparison to the U.S. worker. This means that currently, those who are applying for a NIW in the United States need to instead focus on their business plan (if they are not an academic) for how they are going to create job growth in the United States, regardless of what other U.S. employees in a similar field might be doing.
For example, here are some considerations in light of NIW applicants who are being measured for their ability to have projected benefits in the U.S. economy:
- Is their business plan realistic? Does it involve a concrete plan?
- Is there a lack of funding in their business plan? Has the applicant identified a funding stream?
- Is the goal possible and do you have past examples of other successes that relate to the current business plan and proposed endeavor?
These questions should come to mind for those who are entrepreneurs and pursuing an EB-2 NIW green card. Previous applicants have had their cases rejected because they had a great business plan, one that was concrete, but failed to identify a sustainable stream of funding in order for their project to be competitive enough for the U.S. market.
Employment of U.S. Workers
In addition, while the Matter of Dhanasar made the clear point that some NIW applicants should not be compared directly to others in their labor force (because of the confusion that some entrepreneurs occupy their own niche market), what still remains is the ability for such an applicant to have a plan to hire U.S. workers for their proposed endeavor. This gives their project the “well positioned” justification because how else are you going to advance the proposed endeavor if you can’t hire people to get the job done?
In addition, it might be beneficial, in the letters of the recommender, if the applicant stands out for being able to hire and retain talented individuals, as a past record of success is seen very positively by the USCIS in projecting their application.
