The EB-2 National Interest Waiver (NIW) category offers a unique and valuable pathway to U.S. permanent residency for professionals who possess advanced degrees or exceptional abilities. Unlike traditional employment-based visas, which require a specific job offer and labor certification, the NIW allows individuals to self-petition based on the national importance of their proposed work in the United States. Central to this process is the concept of the "proposed endeavor"—the applicant's intended professional activities and contributions that are deemed to be in the national interest.
In this article, we delve more deeply into the details of the proposed endeavor in EB-2 NIW cases. This guide explores the legal framework established by the landmark Matter of Dhanasar decision, differentiates between a proposed endeavor and a traditional job offer, and provides detailed strategies for crafting a compelling NIW petition. Additionally, it examines special considerations for entrepreneurs and offers practical advice on avoiding common pitfalls.
Understanding the EB-2 NIW Framework
The Legal Evolution: From NYSDOT to Dhanasar
Before 2016, the standard for NIW petitions was governed by the Matter of New York State Department of Transportation (NYSDOT) decision, which set a rigid and often challenging precedent for applicants. The NYSDOT framework required petitioners to demonstrate that their work was of "intrinsic merit," that the benefits of their work were "national in scope," and that their contributions were so significant that the national interest would be adversely affected if a labor certification were required.
Recognizing the limitations of this approach, the Administrative Appeals Office (AAO) issued the Matter of Dhanasar decision in December 2016. This landmark ruling replaced the NYSDOT framework with a more flexible, three-prong test designed to better accommodate a wider range of professionals and endeavors.
The Three-Prong Dhanasar Test
Under Matter of Dhanasar, NIW petitions are evaluated based on the following criteria:
Substantial Merit and National Importance: The proposed endeavor must have significant value and potential to contribute positively to the United States.
Well-Positioned to Advance the Endeavor: The petitioner must demonstrate they possess the skills, knowledge, and record of success necessary to carry out the proposed work.
On Balance, Beneficial to the U.S. to Waive Requirements: Waiving the job offer and labor certification requirements should be advantageous to the nation, considering the petitioner's potential contributions.
Understanding and effectively addressing each prong is essential for a successful NIW petition, with the proposed endeavor serving as the foundation upon which the entire case is built.
Defining the "Proposed Endeavor" in EB-2 NIW Petitions
Understanding the essence of the "proposed endeavor" is crucial for anyone considering an EB-2 National Interest Waiver (NIW) petition. The proposed endeavor represents the specific professional activities, projects, or contributions that the petitioner plans to undertake in the United States. Unlike a traditional job offer tied to a specific employer and position, the proposed endeavor encompasses a broader professional plan that aligns with U.S. national interests and demonstrates potential for significant impact.
The proposed endeavor is not merely a job or position; it is an expansive vision of the petitioner's intended work and its anticipated contributions to their field and society. It allows for flexibility, as it is not restricted to a single employer or location, enabling the petitioner to pursue their professional goals across various platforms or institutions. The emphasis is on the national impact of the work, highlighting how it benefits the United States as a whole rather than just fulfilling the needs of a specific employer.
Distinguishing Between a Proposed Endeavor and a Job Offer
Understanding the difference between a proposed endeavor and a traditional job offer is crucial:
Proposed Endeavor:
Self-Petitioning: Allows the petitioner to apply without a U.S. employer's sponsorship.
Focus on National Interest: Emphasizes the broader impact on the U.S., not just the interests of a single employer.
Flexibility: Not confined to a specific role or employer, allowing for greater autonomy in pursuing professional goals.
Job Offer:
Employer-Sponsored: Requires a specific job offer from a U.S. employer.
Labor Certification: Necessitates proving that no qualified U.S. worker is available for the position.
Specific Role: Tied to a defined set of duties and responsibilities within one organization.
In essence, the proposed endeavor is about the petitioner's idea and potential to contribute to the U.S. nationally, whereas a job offer is about filling a specific position within a company.
Satisfying the Three Prongs of the Dhanasar Test
Understanding the three prongs of the Matter of Dhanasar test is essential when deciding and drafting your proposed endeavor because each prong outlines specific criteria that your endeavor must meet to qualify for the NIW. When crafting your proposed endeavor, you need to bear in mind that your petition letter must address each prong effectively to enhance the strength of your petition and increase the likelihood of approval.
As such, to successfully obtain an NIW, the petitioner must satisfy the three prongs of the Matter of Dhanasar test, which evaluates the merit and national importance of the proposed endeavor, the petitioner's ability to advance the endeavor, and whether it benefits the United States to waive the job offer and labor certification requirements.
Prong 1: Demonstrating Substantial Merit and National Importance
Substantial Merit
The first component requires the petitioner to demonstrate that their proposed endeavor possesses inherent value and contributes meaningfully to their field. Importantly, the term "endeavor" is more specific than a general occupation; it refers to the specific professional activities, projects, or contributions the petitioner intends to undertake in the United States. Rather than simply listing duties associated with their profession, petitioners should offer detailed information about what they specifically propose to accomplish within their field.
For example, while engineering is an occupation, the explanation of the proposed endeavor should describe the specific projects, goals, or areas within engineering the petitioner will focus on, highlighting how these efforts have substantial merit.
The endeavor's merit may be demonstrated in various areas, including but not limited to:
Science and Technology: Engaging in research and development that pushes the boundaries of knowledge or leads to technological advancements.
Healthcare: Initiatives that improve public health outcomes, develop new treatments, or address healthcare disparities.
Education: Efforts to enhance educational systems, curricula, or increase access to education.
Entrepreneurship: Innovative business models that drive economic growth, create jobs, or introduce new products and services.
Environmental Protection: Projects that address climate change, promote sustainability, or conserve natural resources.
To establish substantial merit, the petitioner should:
Highlight Past Accomplishments: Showcase expertise and impact in the field through previous work.
Provide Evidence of Importance: Include data, reports, or studies that validate the significance of the proposed work.
Secure Expert Testimonials: Obtain letters from respected authorities attesting to the endeavor's merit.
It's important to note that while economic impact can support the endeavor's merit, merit may be established without immediate or quantifiable economic benefits. Endeavors related to research, pure science, and the furtherance of human knowledge may qualify even if they are not likely to translate into economic gains for the United States in the near term.
National Importance
Beyond demonstrating substantial merit, the petitioner must show that their proposed endeavor has national importance. Officers assessing NIW petitions examine the endeavor's potential prospective impact, focusing on the nature of the proposed work rather than its geographic scope. An 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.
Examples of endeavors with national importance include:
Public Health Initiatives: Research on vaccines or treatments for diseases affecting the entire country.
Technological Innovations: Development of technologies that enhance national security, communication, or infrastructure.
Environmental Projects: Efforts to reduce carbon emissions or promote renewable energy on a national level.
To establish national importance, the petitioner should:
Align the Endeavor with National Priorities: Connect the proposed work to federal initiatives, legislation, or areas identified as critical by the government.
Illustrate Broad Impact: Demonstrate how the work addresses nationwide challenges or benefits a large segment of the population.
Show Potential for Scaling: Indicate that the endeavor can be replicated or expanded beyond a local context to have broader effects.
A common challenge is differentiating between local and national impact. If the endeavor is localized, the petitioner should emphasize how it serves as a model for national application or addresses issues prevalent across the country. Quantifying the impact using statistics, projections, or case studies can substantiate claims of national importance.
For instance, an endeavor may have national importance if it:
Has significant potential to employ U.S. workers.
Offers substantial positive economic effects, particularly in an economically depressed area.
Broadly enhances societal welfare or contributes to the advancement of a valuable technology or field of study.
It's crucial for petitioners to submit a detailed description explaining the proposed endeavor and provide supporting documentary evidence to establish its national importance. The focus should be on what the petitioner will be doing and the potential impact of those activities, rather than solely on the occupational classification.
Endeavors that lack broader implications for a field or region—such as routine classroom teaching without wider impact—generally do not rise to the level of having national importance for the purpose of an NIW.
Prong 2: Demonstrating the Petitioner Is Well-Positioned to Advance the Endeavor
The second prong of the Matter of Dhanasar test shifts the focus from the proposed endeavor's inherent merit to the petitioner's ability to effectively advance that endeavor. Unlike the first prong, which examines the importance of the work itself, this prong centers on the individual—the petitioner's qualifications, achievements, and preparedness to carry out the proposed activities. The petitioner must convincingly demonstrate that they are well-positioned to advance the endeavor in the United States.
To evaluate whether the petitioner is well-positioned, United States Citizenship and Immigration Services (USCIS) considers several factors, including but not limited to:
Education, Skills, and Record of Success: The petitioner's academic background, professional skills, knowledge, and a proven track record in related or similar efforts.
Development of a Plan or Model: Whether the petitioner has developed, or played a significant role in developing, a model or plan for future activities related to the proposed endeavor.
Progress Toward the Endeavor: Any tangible steps already taken toward achieving the proposed endeavor, indicating commitment and initiative.
Interest or Support from Relevant Entities: The level of interest or support garnered from potential customers, users, investors, or other relevant parties.
Demonstrating Education, Skills, and Record of Success
A strong educational foundation is crucial. The petitioner should possess advanced degrees, certificates, or licenses in the relevant field, such as a master's degree, Ph.D., or equivalent qualifications. Specialized training and continuous learning through workshops, seminars, or conferences further enhance their expertise.
For example:
Degrees and Certifications: Holding advanced degrees in fields pertinent to the endeavor demonstrates formal training and knowledge.
Professional Licenses: Certifications or licenses required to practice in the field, such as medical board certifications or engineering licenses.
Specialized Skills: Unique competencies or technical abilities that are essential for the endeavor.
A robust professional history with a record of success in related efforts is essential. This includes:
Past Achievements: Notable accomplishments that showcase expertise and impact in the field.
Influence on the Field: Evidence that the petitioner's work has influenced their area of specialization.
Leadership Roles: Experience in positions of responsibility, such as team leader, project manager, or principal investigator.
Developing a Plan or Model for Future Activities
The petitioner should present a well-crafted plan outlining how they intend to continue their work in the United States. This plan demonstrates foresight and strategic thinking, indicating that the petitioner has a clear roadmap for advancing the endeavor.
Key elements include:
Objectives and Goals: Specific aims the petitioner seeks to achieve through the endeavor.
Methodologies: Approaches and techniques that will be employed to reach these goals.
Timelines and Milestones: A realistic schedule for implementing various stages of the endeavor.
Expected Outcomes: Anticipated results and their potential impact on the field and society.
For entrepreneurs, a detailed business plan is particularly important. It should encompass:
Market Analysis: Data on industry trends, target markets, and competitive landscape.
Operational Strategies: Plans for business operations, organizational structure, and resource management.
Financial Projections: Revenue forecasts, funding requirements, and investment plans.
Demonstrating Progress Toward the Endeavor
Evidence of progress toward achieving the proposed endeavor strengthens the petitioner's position. This may include:
Pilot Projects or Prototypes: Initial versions or trials that indicate feasibility.
Preliminary Research Findings: Early results that support the endeavor's potential.
Collaborations and Partnerships: Agreements with other professionals, institutions, or organizations that facilitate progress.
Garnering Interest or Support from Relevant Entities
The petitioner should provide evidence of interest or support from potential stakeholders, such as:
Letters of Intent or Support: Correspondence from prospective employers, clients, customers, or collaborators expressing interest in the petitioner's work.
Investment Documentation: Proof of financial backing from U.S. investors, venture capital firms, angel investors, or start-up accelerators.
Government Endorsements: Letters from government agencies or quasi-governmental entities demonstrating support for the endeavor.
For instance, receiving investment from reputable U.S. sources not only provides financial support but also validates the endeavor's potential impact and the petitioner's capability.
Additional Evidence Supporting the Petitioner's Position
A non-exhaustive list of evidence that may demonstrate the petitioner is well-positioned includes:
Patents, Trademarks, or Copyrights: Intellectual property developed by the petitioner, indicating innovation and contribution to the field.
Published Articles or Media Reports: Coverage highlighting the petitioner's achievements or current work.
Citation History: Documentation showing a strong citation record of the petitioner's publications, reflecting influence and recognition.
Awards or Grants: Recognition from federal, state, or local government entities, professional associations, or other institutions.
Use of Work by Others: Evidence demonstrating how the petitioner's work is being utilized, such as contracts with companies using their products or technologies.
Considering the Totality of Circumstances
USCIS officers assess the totality of circumstances to determine whether the petitioner is well-positioned to advance the proposed endeavor. This means evaluating all submitted evidence collectively rather than in isolation. The petitioner does not need to prove that the endeavor is more likely than not to ultimately succeed, but unsubstantiated or implausible claims will not meet the burden of proof.
Special Considerations for Entrepreneurs
Entrepreneurs face unique challenges but can demonstrate their positioning by:
Providing a Detailed Business Plan: Outlining the vision, strategies, and financial projections for the enterprise.
Securing Financial Support: Presenting evidence of investments or funding appropriate to the endeavor.
Highlighting Innovation and Market Potential: Explaining what sets the business apart and its potential impact on the industry.
Gathering Endorsements and Support: Including letters from investors, partners, or government entities expressing confidence in the entrepreneur's ability.
Key Takeaways:
The petitioner must focus on their qualifications and preparedness to advance the endeavor.
Providing a comprehensive array of evidence strengthens the case.
The evidence should collectively demonstrate the petitioner's capability, commitment, and potential impact.
Even if the endeavor's ultimate success is not guaranteed, the petitioner must show that they are well-positioned to advance it.
Unsubstantiated claims or lack of credible evidence will not meet the required standard of proof.
In essence, the second prong is about building a compelling narrative backed by solid evidence that the petitioner is not just qualified but uniquely equipped to make the proposed endeavor a reality, thereby contributing significantly to the United States.
Prong 3: Demonstrating That Waiving the Labor Certification Is Beneficial to the United States
The third prong of the Matter of Dhanasar test requires the petitioner to establish that, on balance, it would benefit the United States to waive the job offer and thus the labor certification requirements. This assessment involves a careful consideration of whether the national interest in the petitioner's contributions outweighs the protections afforded by the labor certification process, which is designed to safeguard U.S. workers' job opportunities, wages, and working conditions.
Balancing National Interest Against Labor Certification
While Congress intended the labor certification process to protect U.S. workers by ensuring that foreign labor does not adversely affect their employment prospects, it also recognized that in certain circumstances, the national interest is better served by waiving these requirements. The labor certification primarily focuses on a geographically limited labor market, and there are instances where the petitioner's contributions have such significant national importance that bypassing the labor certification is justified.
In this context, the United States Citizenship and Immigration Services (USCIS) examines whether the petitioner's endeavor and their ability to advance it, when considered together, provide benefits to the nation that outweigh the advantages of the labor certification process. The petitioner must demonstrate that requiring a job offer and labor certification would adversely impact the realization of their proposed endeavor, which holds substantial merit and national importance.
Arguments for Waiving the Labor Certification
To satisfy this prong, the petitioner should present compelling reasons why a waiver is in the national interest. This involves illustrating that:
Impracticality of Labor Certification: The standard labor certification process is impractical for the petitioner's specific situation. For instance, if the petitioner is self-employed or an entrepreneur whose work does not adversely affect U.S. workers, the labor certification may offer little benefit.
Unique Expertise Not Readily Available: The petitioner possesses unique knowledge, skills, or expertise that are not readily available in the U.S. labor market. This scarcity justifies waiving the labor certification to allow the petitioner to contribute to critical national needs without unnecessary delay.
Urgency of National Needs: The endeavor addresses pressing national issues that cannot afford the delays inherent in the labor certification process. Examples include public health emergencies, national security concerns, or maintaining U.S. competitiveness in STEM fields.
Specific Considerations for the Third Prong
USCIS may consider several factors when determining whether waiving the labor certification is beneficial:
Public Health or Safety Urgency: If the endeavor involves addressing immediate threats to public health or safety, such as developing treatments during a pandemic, the urgency may warrant foregoing the labor certification.
Unique Knowledge or Skills Beyond Minimum Requirements: When the petitioner's expertise exceeds the minimum standards for the occupation and cannot be appropriately captured by the labor certification, waiving the requirement allows the U.S. to benefit from their advanced capabilities.
Economic Revitalization and Job Creation: If the endeavor has the potential to generate significant revenue, contribute to economic growth, or create jobs for U.S. workers, the national interest may be better served by waiving the labor certification.
Advancement of Critical Technologies or Fields: Endeavors that promote U.S. leadership in critical areas, such as advanced manufacturing, cybersecurity, or renewable energy, support national priorities and may justify a waiver.
Making a Compelling Case
To effectively argue that waiving the labor certification is beneficial to the United States, the petitioner should:
Highlight Time Sensitivity: Emphasize any urgent aspects of the endeavor that require immediate action, where delays caused by the labor certification process could hinder critical progress.
Demonstrate Unavailability of U.S. Workers: Provide evidence that their expertise is rare or that there is a shortage of qualified professionals in the field, making the labor certification process less effective in protecting U.S. workers.
Cite Alignment with National Priorities: Reinforce how the endeavor aligns with critical national interests, such as public health, national security, or economic competitiveness, and how the petitioner's contributions are essential to advancing these priorities.
Examples Illustrating Benefit to the United States
Medical Researcher in a Public Health Crisis: A medical researcher developing a vaccine during a widespread disease outbreak represents a case where time is of the essence. Waiving the labor certification allows the researcher to contribute immediately to critical public health needs.
Cybersecurity Expert Protecting National Infrastructure: An engineer specializing in cybersecurity to safeguard national systems from imminent threats addresses urgent national security concerns. The unique expertise and the pressing nature of the work justify bypassing the labor certification.
Entrepreneur Creating Jobs in Economically Depressed Areas: A business owner establishing a company that generates substantial employment opportunities in regions with high unemployment rates contributes to economic revitalization, supporting the national interest.
Key Takeaways for Petitioners
Thoroughly Articulate the National Benefits: Clearly explain how waiving the labor certification enhances the national interest more than adhering to it would.
Provide Substantial Evidence: Support assertions with concrete evidence, such as letters from government agencies, data on labor shortages, or documentation of urgent national needs.
Demonstrate the Limitations of Labor Certification: Explain how the labor certification process is impractical or insufficient for the specific endeavor, and how it might impede important national interests.
Emphasize Unique Contributions: Highlight how the petitioner's unique skills, knowledge, or innovations are essential and not readily available among U.S. workers.
By meticulously addressing these points, petitioners can satisfy the third prong of the Matter of Dhanasar test, thereby enhancing the overall strength of their National Interest Waiver petition and moving closer to achieving their goal of contributing significantly to the United States while obtaining permanent residency.
Proposed Endeavor for STEM Professionals
The landscape of the EB-2 National Interest Waiver (NIW) is particularly significant for professionals in the fields of Science, Technology, Engineering, and Mathematics (STEM). The United States places a high value on advancements in STEM areas due to their critical role in fostering innovation, maintaining economic competitiveness, and ensuring national security. As such, STEM professionals proposing endeavors in these fields have unique opportunities to demonstrate substantial merit and national importance.
Critical and Emerging Technologies in STEM
STEM professionals engaged in critical and emerging technologies occupy a pivotal position in the NIW context. These technologies, identified by authoritative bodies such as the Executive Office of the President, the National Science and Technology Council, or the National Security Council, encompass areas with the potential to significantly influence the nation's future. Examples include artificial intelligence, quantum computing, biotechnology, advanced manufacturing, and cybersecurity.
When a proposed endeavor involves these critical and emerging technologies, it inherently aligns with U.S. national priorities. The endeavor may help the United States maintain technological leadership, enhance economic prosperity, or strengthen national security. Therefore, STEM professionals working in these areas can more readily demonstrate the national importance of their proposed endeavors.
Applying the Three Prongs of the Dhanasar Test for STEM Professionals
1. Demonstrating Substantial Merit and National Importance
For STEM professionals, the substantial merit of the proposed endeavor is often evident due to the nature of their work in advancing knowledge, technology, and innovation. Whether in academic research or industry applications, endeavors that push the boundaries of STEM fields contribute significantly to societal welfare and economic growth.
To establish national importance, STEM professionals should:
Align with National Priorities: Clearly articulate how the endeavor addresses critical needs identified by the U.S. government, such as improving national security, enhancing public health, or bolstering economic competitiveness.
Highlight Broad Implications: Demonstrate that the work has the potential for widespread impact, influencing not just a specific industry but the nation as a whole.
For instance, a professional developing renewable energy technologies contributes to environmental sustainability and energy independence, both of which are national priorities.
2. Demonstrating That the Professional Is Well-Positioned to Advance the Endeavor
STEM professionals must showcase their qualifications and preparedness to carry out the proposed endeavor effectively. This involves a combination of education, experience, and demonstrated achievements.
Advanced Degrees in STEM: Possessing an advanced degree, particularly a Ph.D., in a relevant STEM field is a strong positive factor. It reflects a high level of expertise and specialization necessary for advancing complex endeavors.
Record of Success: Publications in peer-reviewed journals, patents, awards, and previous research projects illustrate the professional's ability to contribute meaningfully to their field.
Plan for Future Activities: Providing a detailed plan or model for the proposed endeavor demonstrates foresight and commitment. This plan should outline objectives, methodologies, and expected outcomes.
Support and Recognition: Letters from experts in the field, evidence of grants or funding, and collaborations with reputable institutions strengthen the case that the professional is well-positioned to advance the endeavor.
3. Demonstrating That Waiving the Labor Certification Is Beneficial to the United States
The final prong involves arguing that it is in the national interest to waive the job offer and labor certification requirements. For STEM professionals, particularly those working in critical and emerging technologies, several factors support this argument:
Impracticality of Labor Certification: The labor certification process may be ill-suited for highly specialized STEM fields where the professional's unique expertise is not readily available in the U.S. labor market.
Urgency and National Need: The endeavor may address urgent national challenges that cannot afford delays inherent in the labor certification process. For example, timely advancements in cybersecurity are essential to protect national infrastructure from immediate threats.
Exceptional Contributions: Even if other U.S. workers are available, the professional's exceptional skills and potential contributions provide significant benefits that justify waiving the labor certification.
Strong Positive Factors for STEM Professionals
USCIS considers the following combination of factors as a strong positive when evaluating the third prong:
Possession of an Advanced STEM Degree: Especially a Ph.D., which indicates the ability to conduct independent and advanced research.
Engagement in Critical and Emerging Technologies: Work that furthers technologies vital to U.S. interests enhances the national significance of the endeavor.
Being Well-Positioned to Advance the Endeavor: Demonstrated through a strong educational background, proven expertise, and a solid plan for future work.
When these elements are present, they weigh heavily in favor of granting the NIW, as the professional's contributions are likely to have substantial and far-reaching benefits for the United States.
Evidentiary Considerations for STEM Professionals
In preparing the NIW petition, STEM professionals should provide comprehensive evidence to support their case:
Educational Credentials: Degrees, transcripts, and certifications that establish the professional's qualifications.
Publications and Citations: Copies of scholarly articles, citation indices, and evidence of the impact of their research.
Patents and Intellectual Property: Documentation of patents, trademarks, or copyrights developed by the professional, showcasing innovation.
Letters of Endorsement: Strong recommendations from experts in the field, detailing the professional's achievements and potential.
Evidence of Support or Interest: Documentation of grants, funding, or collaborations that indicate recognition and backing from reputable entities.
Detailed Project Plan: A clear outline of the proposed endeavor, including goals, methodologies, and expected outcomes.
Examples Illustrating Successful Proposed Endeavors in STEM
Quantum Computing Researcher: A Ph.D. holder specializing in quantum algorithms that could revolutionize data encryption and computational capabilities, directly impacting national security and technological leadership.
Biotechnology Innovator: A professional developing gene-editing technologies to address genetic diseases, contributing to public health advancements and the biotechnology sector.
Environmental Engineer: An expert designing sustainable waste management systems to combat climate change, aligning with national environmental priorities.
The Role of Interested Government Agencies or Quasi-Governmental Entities
In National Interest Waiver (NIW) petitions for STEM professionals, letters from U.S. government agencies or quasi-governmental entities can significantly strengthen the application, though they are not required. These letters can support all three prongs of the Matter of Dhanasar test by providing authoritative evidence of the proposed endeavor's national importance, validating the petitioner's qualifications, and emphasizing the benefits of waiving the job offer and labor certification requirements.
For the first prong, such letters affirm that the endeavor aligns with critical national interests or advances important technologies, substantiating its substantial merit and national importance. For the second prong, detailed endorsements highlight the petitioner's education, skills, and achievements, demonstrating that they are well-positioned to advance the endeavor. Regarding the third prong, agencies can explain how granting the waiver outweighs the benefits of the labor certification process, perhaps due to urgency or significant national benefits, even if other qualified U.S. workers are available.
Including these letters provides authoritative validation and underscores the petitioner's alignment with national priorities, enhancing the likelihood of a successful NIW petition. For STEM professionals working on cutting-edge technologies or areas of strategic importance, such endorsements can be particularly influential in demonstrating their proposed endeavor's value to the United States.
Key Strategies for STEM Professionals:
Align with National Priorities: Ensure the proposed endeavor directly addresses areas identified as critical by the U.S. government.
Highlight Unique Expertise: Emphasize specialized skills and knowledge that set the professional apart and are not readily available in the U.S. labor market.
Provide Robust Evidence: Include comprehensive documentation of qualifications, achievements, and plans to substantiate claims.
Demonstrate Urgency and Impact: Articulate how the endeavor addresses pressing national needs and has the potential for significant positive outcomes.
For STEM professionals, the proposed endeavor is a critical component of the NIW petition, serving as a platform to demonstrate how their specialized skills and planned activities align with and advance U.S. national interests. By effectively articulating the substantial merit and national importance of their work, showcasing their readiness to contribute meaningfully, and arguing persuasively that waiving the labor certification benefits the United States, STEM professionals can strengthen their NIW petitions.
By meticulously preparing their petitions with these considerations in mind, STEM professionals can enhance their prospects of successfully obtaining a National Interest Waiver, allowing them to contribute their expertise to the advancement of the United States.
Proposed Endeavor for Entrepreneurs
Entrepreneurs play a vital role in driving innovation, creating jobs, and contributing to economic growth in the United States. In the context of the EB-2 National Interest Waiver (NIW) petitions, entrepreneurs proposing endeavors that have substantial merit and national importance can pursue this pathway to permanent residency. Crafting a compelling proposed endeavor is crucial for entrepreneurial petitioners, as it must demonstrate alignment with national interests and showcase the entrepreneur's ability to advance the endeavor effectively.
Unique Considerations for Entrepreneurial Endeavors
Entrepreneurial petitioners often have distinct profiles compared to traditional professionals. They may not follow conventional career paths, and their start-up entities can vary widely in structure and operation. When evaluating NIW petitions from entrepreneurs, United States Citizenship and Immigration Services (USCIS) considers the unique aspects of entrepreneurial endeavors, recognizing that there is no single way an entrepreneurial start-up must be organized.
Entrepreneurs typically possess or will possess an ownership interest in a U.S.-based entity they have founded or co-founded. They maintain an active and central role in the operations, leveraging their knowledge, skills, and experience to significantly advance the proposed endeavor. This active involvement is a key factor in demonstrating their well-positioned status to drive the success of the endeavor.
Applying the Three Prongs of the Dhanasar Test for Entrepreneurs
1. Demonstrating Substantial Merit and National Importance
For entrepreneurs, the proposed endeavor must address issues of national importance, contributing positively to the U.S. economy, society, or environment. Evidence supporting this prong may include:
Ownership and Role in the U.S.-Based Entity: Documentation showing the entrepreneur's ownership stake and active role as a founder, co-founder, or key officer demonstrates their commitment and the potential impact of their work.
Investments: Securing investment from reputable U.S. investors, such as venture capital firms or angel investors, indicates confidence in the endeavor's potential. The amount should be consistent with industry standards and appropriate for advancing the endeavor.
Incubator or Accelerator Participation: Acceptance into prestigious incubator or accelerator programs serves as an endorsement of the endeavor's merit and potential for success.
Awards or Grants: Recognition through awards or grants from federal, state, or local government entities, or esteemed organizations, highlights the endeavor's significance and national importance.
Revenue Generation and Job Creation: Evidence of revenue growth, profitability, or job creation supports the claim that the endeavor has substantial merit and contributes to the U.S. economy.
2. Demonstrating That the Entrepreneur Is Well-Positioned to Advance the Endeavor
The entrepreneur must provide evidence of their qualifications and ability to advance the proposed endeavor. Relevant documentation includes:
Educational Background and Expertise: Degrees, certificates, or licenses in relevant fields showcase the entrepreneur's knowledge and skills. A combination of education and practical experience equips them to lead the endeavor effectively.
Past Entrepreneurial Successes: A track record of successfully leading prior start-up entities or launching innovative projects demonstrates the entrepreneur's capacity to replicate success.
Intellectual Property: Patents, trademarks, or copyrights developed by the entrepreneur indicate innovation and contribute to the endeavor's advancement. Documentation should explain the significance of the intellectual property to the field.
Letters from Experts: Endorsements from industry experts, government agencies, or business associations attest to the entrepreneur's abilities and the endeavor's potential impact.
Business Plan and Financial Projections: A comprehensive business plan outlining objectives, strategies, market analysis, and financial forecasts demonstrates preparedness and a clear pathway to success.
Evidence of Progress: Any tangible progress toward achieving the endeavor, such as product development milestones, pilot projects, or customer acquisition, reinforces the entrepreneur's commitment and capability.
3. Demonstrating That Waiving the Labor Certification Is Beneficial to the United States
Entrepreneurs must argue that waiving the job offer and labor certification requirements benefits the United States. This involves showing that the national interest is better served by allowing the entrepreneur to advance the endeavor without the delays of the labor certification process. Considerations include:
Impracticality of Labor Certification: The nature of entrepreneurial endeavors often makes the labor certification process impractical, especially when the entrepreneur is self-employed or plays a central role that cannot be filled by another individual without adversely affecting the endeavor.
Unique Knowledge and Skills: The entrepreneur possesses specialized expertise crucial to the endeavor's success, which is not readily available in the U.S. labor market.
Economic and Social Benefits: The endeavor has the potential to generate significant revenue, stimulate economic growth, create jobs, or address pressing social issues, outweighing the benefits of the labor certification process.
Urgency and National Priority: The endeavor may address urgent national needs, such as technological innovation, public health challenges, or environmental sustainability, justifying the waiver.
Supporting Evidence for Entrepreneurial Endeavors
Entrepreneurs should provide comprehensive evidence to strengthen their NIW petition:
Ownership Documentation: Legal documents confirming ownership interest and the entrepreneur's role in the U.S.-based entity.
Investment Agreements: Term sheets, investment contracts, or letters of intent from investors.
Incubator/Accelerator Acceptance Letters: Documentation of participation in reputable programs, along with evidence of the programs' success rates.
Awards and Grants: Certificates or letters confirming awards or grants received, detailing the selection criteria and significance.
Financial Statements: Audited financial reports, revenue statements, and projections demonstrating financial health and growth potential.
Employment Records: Evidence of job creation, such as payroll records or employee contracts.
Intellectual Property Documentation: Patent certificates, licensing agreements, or documentation of proprietary technologies.
Media Coverage: Articles or reports highlighting the entrepreneur's work and its impact, with information on the credibility of the media outlets.
Letters of Support: Endorsements from customers, clients, partners, or industry associations attesting to the endeavor's merit and the entrepreneur's qualifications.
Addressing the Totality of Circumstances
USCIS evaluates the totality of circumstances when assessing NIW petitions from entrepreneurs. While traditional metrics like revenue and profitability are important, other factors such as innovation, market potential, and societal impact are equally significant. Entrepreneurs are not required to prove that the endeavor will ultimately succeed but must provide credible evidence that supports the endeavor's substantial merit and national importance, their ability to advance it, and the overall benefit to the United States of waiving the labor certification requirements.
Key Strategies for Entrepreneurial Petitioners:
Highlight National Impact: Emphasize how the endeavor addresses national challenges, contributes to economic growth, or fosters innovation.
Demonstrate Unique Role: Clearly establish the entrepreneur's indispensable role in the endeavor and how their active participation is crucial to its success.
Provide Comprehensive Evidence: Include a variety of supporting documents that collectively substantiate the endeavor's merit and the entrepreneur's qualifications.
Articulate Benefits of Waiver: Explain why waiving the labor certification is beneficial, focusing on the impracticality of the process for the endeavor and the advantages to the United States.
Entrepreneurs seeking an EB-2 NIW must thoughtfully craft their proposed endeavor to highlight its alignment with U.S. national interests and demonstrate their unique qualifications to advance it. By providing robust evidence across all three prongs of the Dhanasar test and articulating a compelling case for the national benefits of waiving the labor certification, entrepreneurs can strengthen their petitions.
By carefully preparing their NIW petitions with these considerations, entrepreneurs can enhance their chances of success, ultimately contributing their innovation and expertise to the advancement of the United States.
Common Pitfalls to Avoid When Drafting the Proposed Endeavor
When preparing the proposed endeavor for an EB-2 National Interest Waiver (NIW) petition, applicants often encounter several common pitfalls that can weaken their case. One frequent mistake is providing a vague or overly broad description of the endeavor. Failing to specify the exact nature of the work, its objectives, and its potential impact makes it difficult for adjudicators to assess its substantial merit and national importance. Another pitfall is not adequately aligning the endeavor with U.S. national interests or failing to demonstrate how it addresses critical national needs or priorities.
Applicants sometimes neglect to thoroughly showcase how they are well-positioned to advance the endeavor, omitting evidence of their unique qualifications, past achievements, or a clear plan for future activities. Overlooking the importance of articulating why waiving the labor certification is beneficial to the United States is another common error. This includes not explaining the impracticality of the labor certification process for their specific situation or not emphasizing the urgency and significance of their contributions.
Relying on unsubstantiated claims without robust supporting evidence can significantly diminish the strength of the petition. Additionally, failing to address all three prongs of the Matter of Dhanasar test comprehensively can lead to a denial. It's crucial to present a well-organized and coherent petition that clearly ties together the proposed endeavor, the applicant's ability to advance it, and the national benefits of waiving the standard requirements. By being mindful of these pitfalls and addressing them proactively, applicants can enhance the effectiveness of their NIW petition and increase the likelihood of approval.
Key points to consider
You can avoid pitfalls and increase your chances of immediate approval by identifying them and proactively addressing them.
Tailor your submission to the requirements: Ensure every aspect of your plan focuses on proving you meet the three main visa criteria
Use reliable sources for research: You’ll appear more professional and knowledgeable if you use original, reputable sites, journals, and databases to support your plan
Avoid treating your plan like a biography: Many sections may focus on your background, but the immigration officer will only be interested in how your experience makes you a good candidate. Prioritize facts over anecdotal evidence
Spare no details: If you don’t provide a comprehensive business plan, the officer may ask for extra information and delay your application. You also only have one chance to make a response to this request for information (RFE)
Get a proofreader: Officials won’t judge you on your writing or language proficiency. However, getting someone to error check and make revisions can make you look more professional
Outsource to experts where necessary: USCIS won’t penalize you for getting help with your proposal. You can hire researchers, graphic designers, and even business plan writers, provided the ideas are your own
Conclusion
The proposed endeavor is the foundation of a successful EB-2 National Interest Waiver (NIW) petition. It represents more than just a job or position; it is a detailed vision of the petitioner's intended professional contributions and their potential impact on the United States. Understanding and effectively articulating this concept is crucial, as it directly influences the petition's strength across all three prongs of the Matter of Dhanasar test.
For STEM professionals, the proposed endeavor often aligns naturally with national priorities due to the critical role of science and technology in fostering innovation, economic growth, and national security. By engaging in critical and emerging technologies, STEM petitioners can demonstrate substantial merit and national importance, particularly when their work addresses pressing national needs or maintains the United States' technological leadership. Providing robust evidence of advanced degrees, specialized expertise, and a clear plan for future activities strengthens their position. Including endorsements from government agencies or reputable institutions can further validate the endeavor's significance.
Entrepreneurs face unique challenges but also have distinctive opportunities to showcase how their endeavors contribute to the national interest. By highlighting innovation, job creation, and economic revitalization, entrepreneurs can establish the substantial merit and national importance of their proposed endeavors. Demonstrating an active and central role in their U.S.-based entities, securing investments, and providing comprehensive business plans are essential steps. Articulating why waiving the labor certification process benefits the United States—due to the impracticality of the process for their specific situation and the potential for significant national gains—is critical for satisfying the third prong.
In all cases, petitioners must meticulously prepare their petitions by:
Clearly Defining the Proposed Endeavor: Offer detailed descriptions of the specific projects, goals, and activities planned, emphasizing their potential national impact.
Aligning with National Priorities: Research and connect the endeavor to current U.S. initiatives, strategic plans, or areas identified as critical by the government.
Providing Comprehensive Evidence: Compile documentation such as degrees, publications, patents, endorsements, business plans, and evidence of progress to substantiate claims.
Demonstrating Unique Qualifications: Highlight specialized skills, knowledge, and past achievements that position the petitioner to advance the endeavor effectively.
Articulating the National Benefits: Explain how the endeavor addresses national challenges, contributes to economic growth, enhances national security, or promotes societal welfare.
Addressing the Labor Certification Waiver: Provide compelling reasons why waiving the job offer and labor certification requirements serves the national interest more than adhering to them would.
By focusing on the proposed endeavor and its alignment with the national interest, petitioners can create a compelling narrative that satisfies the requirements of the Matter of Dhanasar test. The endeavor should be presented not just as a professional pursuit but as a significant contribution to the United States, demonstrating the potential for substantial and far-reaching benefits.
Final Thoughts
The journey to obtaining an EB-2 NIW is complex and demanding, but by centering your petition around a well-defined and impactful proposed endeavor, you enhance your chances of success. Whether you are a STEM professional pushing the boundaries of innovation or an entrepreneur driving economic growth, your contributions can play a vital role in advancing the national interests of the United States.
Careful planning, strategic presentation, and thorough documentation are essential. By articulating a clear vision of your proposed endeavor and demonstrating how it meets the stringent criteria of the NIW process, you position yourself not only for immigration success but also as a valuable asset to the nation.
As you move forward, consider seeking guidance from experienced professionals who can assist in navigating the intricacies of the NIW petition. With dedication and a well-crafted application, you can achieve your goal of permanent residency while making meaningful contributions to the United States.
Please note that this article is for informational purposes only and does not constitute legal advice. We strongly advise consulting with a qualified immigration attorney specializing in NIW cases—whether with us or another experienced firm of your choice—to navigate this process effectively and optimize strategies for a successful application.
At LexElite, we offer a free evaluation for EB-2 NIW and EB-1 cases. If you would like to assess your eligibility for these categories, please email your resume to us at info@lexelite.com.
Comments