EB2-NIW  FILING ASSISTANCE

EB2-NIW Petition is not a matter of submitting your I-140 together with your evidence and documents.  You need to write a cover letter to tell your story. To sell yourself that your advanced degree and/or exceptional ability warrants the grant you a national interest waiver. Your evidence and documents cannot speak for themselves, your petition may be reviewed by an adjudicator who has no knowledge of your profession or the technical language used in your field. So you create a narrative about how you started in your profession and where you are now in your chosen field of endeavor and how it measures up with the national interest waiver requirements in terms of substantial merit and national importance, how you are well positioned to advance that field of endeavor sufficient enough by a preponderance of evidence to waive the requirement of a job offer or labor certification in the national interest of USA.

Preponderance of the evidence is one type of evidentiary standard used in a burden of proof analysis. Under the preponderance standard, the burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true.

When writing your proposed endeavor,  you must be able present evidence that demonstrates, by a preponderance of the evidence, that the proposed endeavor has substantial merit and national importance. The term “endeavor” is more specific than the general occupation; you should offer details not only as to what the occupation normally involves but what types of work you propose to undertake specifically within that occupation.

For example, while engineering is an occupation, the explanation of the proposed endeavor should describe the specific projects and goals, or the areas of engineering in which the petitioner/beneficiary will work, rather than simply listing the duties and responsibilities of an engineer.

The endeavor’s merit may be demonstrated in areas including, but not limited to, business, entrepreneurship, science, technology, culture, health, or education.

In addition,  evidence of the endeavor’s potential significant economic impact, but “merit may be established without immediate or quantifiable economic impact” and “endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.

Adjudicators examine the national importance of the specific endeavor proposed by considering its potential prospective impact. You should focus on the nature of the proposed endeavor, rather than only the geographic breadth of the endeavor. In Dhanasar, “certain locally- or regionally-focused endeavors may be of national importance despite being difficult to quantify with respect to geographic scope”.

For example, the endeavor “may have national importance because it has national or even global implications within a particular field, such as certain improved manufacturing processes or medical advances.” Economically, it may have “significant potential to employ U.S. workers” or “other substantial positive economic effects, particularly in an economically depressed area.” Therefore, you should submit a detailed description explaining the proposed endeavor and supporting documentary evidence to establish that the endeavor is of national importance.

In presenting that your proposed endeavor is of national importance, you should focus on what you will be doing rather than the specific occupational classification. Endeavors such as classroom teaching, for example, without broader implications for a field or region, generally do not rise to the level of having national importance to establish eligibility for a national interest waiver.

Ultimately,  your evidence of record demonstrates that your proposed endeavor has the significant potential to broadly enhance societal welfare or cultural or artistic enrichment or to contribute to the advancement of a valuable technology or field of study, it may rise to the level of national importance.

Unlike the first prong, which focuses on the merit and importance of the proposed endeavor, the second prong centers on the person. Specifically, the petitioner must demonstrate that the person is well positioned to advance the endeavor.

In evaluating whether the person is well positioned to advance the endeavor, USCIS considers factors including, but not limited to:

• The person’s education, skills, knowledge, and record of success in related or similar efforts;

• A model or plan that the person developed, or played a significant role in developing, for future activities related to the proposed endeavor;

• Any progress towards achieving the proposed endeavor; and

• The interest or support garnered by the person from potential customers, users, investors, or other relevant entities or persons.

You should submit evidence to document your past achievements and corroborate projections related to the proposed endeavor to show that you are well-positioned to advance the endeavor. A person may be well-positioned to advance an endeavor even if the person cannot demonstrate that the proposed endeavor is more likely than not to ultimately succeed. 

However,  do not make the mistake of thinking that you are given the leeway that although your proposed endeavor is more likely than not to ultimately succeed, you cannot make the hypothetical assumption and make unsubstantiated or implausible claims would not meet the burden of proof.  The adjudicating officers must consider the totality of circumstances to determine whether the preponderance of evidence establishes that the you are is well positioned to advance the proposed endeavor.

This last prong requires you to demonstrate that the factors in favor of granting the waiver outweigh those that support the requirement of a job offer and thus a labor certification, which is intended to ensure that the admission of foreign workers will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.

While Congress sought to further the national interest by requiring job offers and labor certifications to protect U.S. workers, Congress also recognized that in certain instances the national interest is better served by a waiver of the job offer and thus the labor certification requirement. In such cases, a national interest waiver outweighs the benefits inherent to the labor certification process, which primarily focuses on a geographically limited labor market. Within the context of national interest waiver adjudications, Congress entrusted the Secretary of Homeland Security to balance this interest.

Therefore, for the third prong, you must ensure that the endeavor and you are well-positioned to advance that endeavor, taken together, provide benefits to the nation such that a waiver of the labor certification requirement outweighs the benefits that ordinarily flow from that requirement. For example, in the case of an entrepreneur, where the person is self-employed in a manner that generally does not adversely affect U.S. workers, or where the petitioner establishes or owns a business that provides jobs for U.S. workers, there may be little benefit from the labor certification.

It is worth noting that at the Administrative Appeals Office ("AAO") where prongs 1 and 2 were satisfied, the third prong was also found to be met. The adjudicators tend to restate the “well-positioned analysis coupled with national importance analysis.” No AAO case was denied solely on failure to meet the 3d prong.