Topic: Green Cards
The usual path to a green card based on an alien’s occupation requires a U.S. employer to petition for the alien for a green card. Before the U.S. employer can do so, it is necessary for the employer to prove that there is a shortage of U.S. workers for that job. This process is known as applying for a Labor Certification.
The exception to this rule allows aliens to petition for themselves and avoid the labor certification process, if they are exceptional in their field and they will benefit the U.S. national interest. In other words, the labor certification requirement is waived, if the alien’s occupation will benefit the national interest of the U.S.A., hence it is known as a “national interest waiver. (NIW)”
An entrepreneur can qualify if the:
Entrepreneur will be working in the sciences, arts, or business;
Entrepreneur has exceptional ability in the sciences, arts, or business; and
Entrepreneur will substantially benefit prospectively the national economy,
cultural or educational interests, or welfare of the United States
How does an entrepreneur show that he or she will substantially benefit
prospectively the national economy, cultural or educational interests, or welfare
of the United States?
Entrepreneurs should discuss in their petitions, which element(s) (national economy, cultural or
educational interest, or welfare of the United States) the entrepreneurial enterprise is
claimed to benefit. For example, the educational interests of the United States may
be met by an entrepreneurial enterprise that establishes tutoring instruction learning
centers throughout the United States.
As another example, the entrepreneur could demonstrate that at least one aspect of
the welfare of the United States will be “substantially” better off were the
entrepreneurial enterprise to be located in the United States. It should be noted that
the term “welfare” as used by the statute is a broad concept and could refer to any
number of areas.
NATIONAL INTEREST WAIVER
The term “national interest” is not defined in the statute or the regulations, and
Congress did not specifically define the phrase in the relevant legislative history.
However, USCIS issued a precedent decision concerning NIWs, Matter of New York
State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).
While NYSDOT does not involve an entrepreneur, the decision contemplates that
entrepreneurial or self-employed beneficiaries may qualify for the NIW under
NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of
the job offer requirement:
1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.
Stated another way, the petitioner must establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
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