NIW Three-Part Test
Today, the USCIS will grant a NIW to a foreign national who is eligible for an EB-2 as either an Advanced Degree professional or a person of Exceptional Ability if he or she can demonstrate each of the requirements under a new 3-part test.
1. THE FOREIGN NATIONAL’S PROPOSED ENDEAVOR HAS BOTH SUBSTANTIAL MERIT AND NATIONAL IMPORTANCE.
This first prong focuses on the specific endeavor that the foreign national proposes to undertake in the United States. The endeavor may be in a variety of fields, such as business, entrepreneurialism, science, technology, culture, health, or education. Proof of the potential to create a significant economic impact can be very helpful, but it is not required. However, the Dhanasar case also has opened the door for possible measuring of success by a comprehensive business plan and economic impact study.
Recommended types of evidence include:
- Articles or other published media discussing the importance of the planned endeavor.
- Letters from recognized experts in the field of endeavor attesting to the foreign national’s area of expertise.
- Published articles or media reports describing the field of expertise.
- Testimonials by experts and from past/present employers who can attest to the national importance of the foreign national’s work.
Letters from experts in the field attesting to the foreign national’s work and its national importance.
3. THAT, ON BALANCE, IT WOULD BE BENEFICIAL TO THE UNITED STATES TO WAIVE THE REQUIREMENTS OF A JOB OFFER AND THUS OF A LABOR CERTIFICATION
The purpose of the Labor Certification process is to protect the national interests of the United States by ensuring that the wages and working conditions of U.S. workers employed in the same field would not be adversely affected. So, when deciding whether to grant a waiver, USCIS looks at all of the evidence to see whether the national benefits considered are more important than the national interests at risk in the Labor Certification process. Some of the documentation that is important to demonstrate that waiving the Labor Certification requirement would benefit the national interests of the United States includes:
- Whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either to secure a job offer or to obtain a labor certification. For example, the labor certification process may prevent a U.S. employer from sponsoring a foreign national with unique knowledge or skills that cannot easily be articulated in a labor certification.
- It may be impractical for an entrepreneur or self-employed inventor, when advancing an endeavor on his or her own, to secure a job offer from a U.S. employer.
- Even if other qualified U.S. workers are available, can it be shown that the United States would still benefit from the foreign national’s contributions.
- Whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.
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