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A realistic look at an EB-2 NIW Entrepreneur

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  • 1. A Realistic Look at an EB-2 NIW EntrepreneurFrom a non-precedent AAO Decision dated August 12, 2010, and posted on the USCIS website. “Neither the statute nor the pertinent regulations define the term "national interest." Additionally, Congress did not provide a specific definition of "in the national interest." The Committee on the Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by increasing the number and proportion of visas for immigrants who would benefit the United States economically and otherwise...." S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it appropriate to leave the application of this test as flexible as possible, although clearly an alien seeking to meet the [national interest] standard must make a showing significantly above that necessary to prove the "prospective national benefit" [required of aliens seeking to qualify as "exceptional."] The burden will rest with the alien to establish that exemption from, or waiver of, the job offer will be in the national interest. Each case is to be judged on its own merits. Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Commr. 1998) (NYSDOT), has set forth several factors which must be considered when evaluating a request for a national interest waiver. First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the aliens past record justifies projections of future benefit to the national interest. The petitioners subjective assurance that the alien will, in the future, serve the national interest cannot suffice to establish prospective national benefit. The inclusion of the term "prospective" is used here to require future contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior achievements, and whose benefit to the national interest would thus be entirely speculative.” At pp. 2-3Caveat to the petitioners and beneficiaries seeking a waiver of the DOL labor certificationprocess and/or an actual job offer: The ultimate decision as to eligibility for a national interestwaiver (NIW) is made through the careful and sometimes painstaking dissection and distillationof the evidence submitted, in the context of, the specific criterion one seeks to prove andestablish. “It is the position of [USCIS ] to grant national interest waivers on a case by casebasis ... [as demonstrated by the evidence in the individual record] ..., rather than to establishblanket waivers for entire fields of specialization.” See NYSDOT, at p. 271.EB-2 NIW Entrepreneur Possibilities Page 1
  • 2. As one can see, the statute does not offer much to work with as to national interest waiverpossibilities for an entrepreneur. Pertinent to this discussion are the following few snippets fromINA § 203(b)(2). USCIS may waive the job offer and associated labor certification process foran alien who is a professional, with an advanced degree (or equivalent combination of educationand experience or sufficient experience and accompanying recognition) or an alien ofexceptional ability in the sciences, arts, or business, who will substantially benefit prospectivelythe national economy, cultural or educational interests, or welfare of the United StatesThis discussion is focused on entrepreneurs, so the key words found in the statute include analien who can demonstrate their exceptional ability in business. Furthermore, that alien mustshow that their entrepreneurial efforts will substantially benefit the national interests of theUnited States in certain areas. The specific areas that need some clarification pertain to thenational economy, cultural interests, educational interests, or welfare of the United States. Whilethese terms needs some interpretation, they do not need constrictive limits. Limits can also beexpansive and expanding. Therefore, by invoking the Legacy INS statement in the FederalRegister in 1991 (supra), “it appropriate to leave the application of this test as flexible aspossible” even though the alien is expected to show evidence and persuasive argument and/orinformation that will result in a favorable finding of a prospective benefit that exceeds thestandard for an “exceptional” alien who would otherwise still need a job offer and laborcertification.USCIS needs to decide and announce how it will interpret the following terms within the EB-2NIW Entrepreneur context as accomplished by the alien of exceptional ability in business andas they relate to a substantial prospective beneficial effect in the:  National Economy,  National Cultural Interests,  National Educational Interests, or  National Welfare of the United States.USCIS will need to determine some standards of evidence that could be helpful in making theabove findings of fact and offer some possibilities as to the types of evidence that might be mostuseful in making those findings. Such standards are not defined in the statute. However, the EB-2 NIW entrepreneur could borrow certain concepts from the H1-B regulations in that certainsupporting documentation could be viewed like opinions of recognized authorities in support of anentrepreneur in either visa category. See 8 CFR § 214.1 (h)(4)(ii).Again, certain concepts can be borrowed from the EB-5 immigrant investor but without the EB-5job creation and capital investment minimums. Business plans supported by economic analysesbased on an accepted econometric model and supported by valid and realistic data may showprojections as prospective benefits of the alien entrepreneurs’ activities. See generally 8 CFR §204.6.EB-2 NIW Entrepreneur Possibilities Page 2
  • 3. INA § 203 [8 USC 1153] ALLOCATION OF IMMIGRANT VISAS[Secretary of Homeland Security has been substituted for Attorney General.](b) Preference Allocation for Employment-Based Immigrants. - Aliens subject to the worldwidelevel specified in section 201(d) for employment-based immigrants in a fiscal year shall beallotted visas as follows:(2) Aliens who are members of the professions holding advanced degrees or aliens ofexceptional ability. -(A) In general. - Visas shall be made available, in a number not to exceed 28.6 percent of suchworldwide level, plus any visas not required for the classes specified in paragraph (1), toqualified immigrants who are members of the professions holding advanced degrees or theirequivalent or who because of their exceptional ability in the sciences, arts, or business, willsubstantially benefit prospectively the national economy, cultural or educational interests,or welfare of the United States, and whose services in the sciences, arts, professions, orbusiness are sought by an employer in the United States.(B) WAIVER OF JOB OFFER- (i) NATIONAL INTEREST WAIVER- 1/ 1a/ Subject to clause (ii), the Secretary of Homeland Security may, when the Secretary of Homeland Security deems it to be in the national interest, waive the requirements of subparagraph (A) that an aliens services in the sciences, arts, professions, or business be sought by an employer in the United States. (ii) PHYSICIANS WORKING IN SHORTAGE AREAS OR VETERANS FACILITIES- (I) The Secretary of Homeland Security shall grant a national interest waiver pursuant to clause (i) on behalf of any alien physician with respect to whom a petition for preference classification has been filed under subparagraph (A) if-- (aa) the alien physician agrees to work full time as a physician in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs; and (bb) a Federal agency or a department of public health in any State has previously determined that the alien physicians work in such an area or at such facility was in the public interest. (II) PROHIBITION- No permanent resident visa may be issued to an alien physician described in subclause (I) by the Secretary of State under section 204(b) , and the Attorney General may not adjust the status of such an alien physicia n from that of a nonimmigrant alien to that of a permanent resident alien under section 245 , until such time as the alien has worked full time as a physician for an aggregate of 5 years (not including the time served in the status of an alien described in section 101(a)(15)(J) ), in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs.EB-2 NIW Entrepreneur Possibilities Page 3
  • 4. (III) STATUTORY CONSTRUCTION- Nothing in this subparagraph may be construed to prevent the filing of a petition with the Secretary of Homeland Security for classification under section 204(a) , or the filing of an application for adjustment of status under section 245 , by an alien physician described in subclause (I) prior to the date by which such alien physician has completed the service described in subclause (II). (IV) The requirements of this subsection do not affect waivers on behalf of alien physicians approved under section 203(b)(2)(B) before the enactment date of this subsection. In the case of a physician for whom an application for a waiver was filed under section 203(b)(2)(B) prior to November 1, 1998, the Secretary of Homeland Security shall grant a national interest waiver pursuant to section 203(b)(2)(B) except that the alien is required to have worked full time as a physician for an aggregate of 3 years (not including time served in the status of an alien described in section 101(a)(15)(J) ) before a visa can be issued to the alien under section 204(b) or the status of the alien is adjusted to permanent resident under section 245 .(C) Determination of exceptional ability. - In determining under subparagraph (A) whether animmigrant has exceptional ability, the possession of a degree, diploma, certificate, or similaraward from a college, university, school, or other institution of learning or a license to practiceor certification for a particular profession or occupation shall not by itself be consideredsufficient evidence of such exceptional ability.FN 1 Section 5 of Public Law 106-95, dated November 12, 1999, amended section203(b)(2)(B) in its entirety. SEC. 5. NATIONAL INTEREST WAIVERS OF JOB OFFER REQUIREMENTS FOR ALIENS WHO ARE MEMBERS OF THE PROFESSIONS HOLDING ADVANCED DEGREES OR ALIENS OF EXCEPTIONAL ABILITYFN1a Section 203(b)(2)(B) is amended in its entirety by section 117 , of Public Law 106-113 ,Appendix A (H.R. 3421) dated November 29, 1999.Given the fact that Matter of NY State Dept of Trans, 22 I&N Dec. 215 (AAO1998) was decided and issued BEFORE the latest revisions to National InterestWaiver provision, there may be some pertinent information to be gleaned from thenon-precedent AAO decisions that came after the change in the statute. I haveonly cited to one such decision but there are more.EB-2 NIW Entrepreneur Possibilities Page 4