Ustun Law Group, PLLC

New EB2-NIW clause, and points to consider:

In order to apply for a Green Card, you must be eligible under one of the categories listed in USCIS website

Furthermore, you will be eligible for Employment-based green cards:  if you are an Immigrant Worker, Physician National Interest Waiver, or an Immigrant Investor. There are three tiers of preference, First (EB1), Second (EB2), and Third (EB3).  Under general circumstances, the application of the second preference(EB2) category requires a specific job offer and needs to pass labor certification (PERM). A U.S. employer needs to act as a case petitioner, and need to obtain a labor certification before filing Form I-140 for the foreign national. However, a foreign national may seek a waiver of job offer and PERM if he/she can establish her admission to permanent residency would be in the “national interest” of the United States. EB2-NIW could be beneficial for a number of reasons:

  • Perhaps you don’t have the required qualification for EB-1A
  • You are a researcher, but your organization is not eligible for EB-1B
  • Or you haven’t worked for your foreign startup for a year, and hence don’t qualify for EB-1C
  • Or you can’t get through PERM
  • Or you don’t have enough money to file for EB-5
  • No available family sponsor
  • Or never got picked under diversity green card lottery

The benefit of the EB-2 Category under NIW:

  • You can skip the PERM process
  • You save time, money, save yourself from a lot of uncertainty, and anxiety

Even though EB2-NIW was an option in the past, not too many lawyers recommended clients to file for EB2 under this category. Fortunately, it changed on December 28th, 2016. Details of the brief can be found here.

How is the new standard different from the old standard of EB2-NIW: 

The National Interest Waiver is laid out in the Second Level (EB-2) in section 203(b)(2) of the act.  Under subparagraph (B) of section 203(b)(2), the Secretary of Homeland Security may waive the requirement of a “job offer” (namely, that the beneficiary’s services are sought by a U.S. employer) and, “may, when the [Secretary] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.” (See INA Section 203(b)(2)).

Previously the term “national interest” was not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history either. USCIS did not provide any specific language either but copied the language of the above statute verbatim, and NIW was established by precedent NYSDOT case on 7th August 1998. Administrative Appeals Office(AAO) laid out a three-part test:

  1. Show that the area of employment is of  “substantial intrinsic merit”.
  2. Show that any proposed benefit from the individual’s endeavors would be “national in scope”.
  3. The petitioner must demonstrate that “the national interest would be adversely affected if a labor certification were required for the foreign national.”

There were five different tests for this in the NYSDOT decision alone, which was way too confusing, plus it was often misinterpreted to require evidence about the labor market which has made it too hard for entrepreneurs to pass over this hurdle. On December 28th, 2016 the Administrative Appeals Office issued a decision in Matter of DHANASAR that has changed the landscape for National Interest Waiver cases. Dhanasar revamped the NYSDOT three-pronged test to clarify the confusion and made it easier for entrepreneurs and other self-employed individuals to qualify under EB2-NIW.

The new system only consists of three prongs:

  • the first prong of Dhanasar is whether the foreign national’s proposed endeavor has both substantial merit and national importance
  • The second prong is whether the particular foreign national is well-positioned to advance the proposed endeavor
  • The third and final prong is whether, on balance, it would it be beneficial to the U.S. to waive the requirements of a job offer and thus of a labor certification

Under the new system: entrepreneurs and self-employed individuals do not have to compare against US workers or show harm to the national interest for waiving PERM. If you can show that you meet all three factors, USCIS can use its discretion to approve an EB-2 NIW green card for you.

Please Note Examples of “substantial merit” include fields of business, entrepreneurialism, science, technology, culture health, education, science, and furtherance of human knowledge. However, if you are from India or China, you will have to face the backlog due to country quota. But, if you’re on H-1B, you can get extensions under AC21 while you’re waiting for the priority date to become current!

Intrigued? Still, have questions? Get in touch with us to learn more and to figure out if you qualify.