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EB-2 National Interest Waiver

If you are a foreign national entrepreneur seeking to start a business in the United States, and you meet the requirements of the EB-2 advanced degree professional or the EB-2 exceptional ability visa, you will also need to wave the labor certification requirement by qualifying for the a national interest waiver (NIW). For additional information, or if you would like to have a consultation with an attorney about the specific circumstances and strength of your case, contact the experienced attorneys at The Law Firm of Shihab & Associates. Our lawyers have over 50 years of combined legal experience in a wide variety of complex immigration law matters.

How does a national interest waiver work for an entrepreneur?

If you plan to start up a business that does not qualify for the H-1B visa, such as a security company, restaurant, or other non-specialty occupation, and if your work will benefit nationally the United States, the NIW may work for you. Let us plan a business strategy that works best for you. We are an innovative firm with proven results.

What is the national interest waiver?

In order to file a petition for the EB-2 visa, it is required to first obtain a job offer and a labor certification from the US Department of Labor (DOL). Obtaining a labor certification is a complex and time-consuming process designed to ensure that qualified authorized US workers are unavailable to fill the job position, and that wages and working conditions of US workers in the same field would not be adversely affected. Obtaining a national interest waiver allows the EB-2 visa petitioner to sidestep this requirement. In order to qualify for the NIW, you must prove that your work in the United States will be in an area of substantial intrinsic merit, that the proposed impact of your work is national, and that granting you the waiver would benefit the national interests of the United States.

As an entrepreneur you should obtain a national interest waiver

One requirement for the EB-2 visa is a job offer. However, as an entrepreneur, you own your own company and therefore cannot demonstrate that there is a true employer-employee relationship. Hence, a national interest waiver would work here.

What are the qualifications required to obtain a national interest waiver?

The legal definition of “national interest” is not defined by statute or regulation. To determine the meaning of national interest, we must look to a USCIS precedent decision in the case Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT). This case sets forth a three-pronged test to determine whether you qualify qualifies for a national interest waiver.

Requirement 1: You must establish that you intend to work in the US in an area of substantial intrinsic merit

Whether you meet this requirement is dependent upon the evidence that you provide to the USCIS showing that the work you plan to do in the US is in an area of substantial intrinsic merit. As an entrepreneur, you should focus on the proposed employment instead of your qualifications.

Requirement 2: You must establish that the proposed impact of your work is national in scope

Although in order to qualify, your work can be limited to a certain geographic location, you must show that your work will produce a benefit in more than merely a certain region of the US. As an entrepreneur, you should show that your enterprise will serve the national interest to a substantially larger extent than the work of others in the same field.

Requirement 3: You must establish that waving the labor certification requirement would benefit the national interests of the United States

The reason for the labor certification requirement is to safeguard the US national interest by making sure that wages and working conditions of US workers in your field will not be affected unfavorably. Therefore, in making the decision whether you qualify for the NIW, the USCIS will measure the benefit your work will provide to the national interests of the United States against the benefit of safeguarding US workers through labor certification. Thus, the evidence that you provide for your petition must show that your work will serve the national interest to a substantially larger degree than a majority of those in your field, and will outweigh the benefit of requiring a labor certification. If you have any questions about the national interest waiver for entrepreneurs or any of the other types of immigration matter that may be considering. Please contact our immigration attorneys at The Law Firm of Shihab & Associates, Co., LPA to schedule a consultation with an attorney at one of our offices near you.

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