EB2-NIW  FILING ASSISTANCE

Mere possession of an advanced degree or its equivalent is not sufficient for establishing a beneficiary’s eligibility for this classification.

• You must also demonstrate that the position certified in the underlying permanent labor certification application or set forth on the Schedule A application requires a professional holding an advanced degree or the equivalent.
• You must demonstrate that the position, and the industry as a whole, normally requires that the position be filled by a person holding an advanced degree.

Where the position requires multiple credentials combined with experience, the issue is not whether a combination of more than one of the foreign degrees or credentials is comparable to a single U.S. bachelor’s degree or an advanced degree, but rather that the minimum requirements for the position in the permanent labor certification meet the definition of an advanced degree.

NURSES: 

This requirement has resulted in a particular problem involving petitions filed on behalf of registered nurses. Although many such nurses possess advanced degrees, they are filling nursing positions in the United States that generally do not require advanced degrees. Specifically, the Occupational Information Network (O*Net)  indicates that, in nursing, only managerial jobs (director of nursing or assistant director of nursing) or advanced level jobs (such as clinical nurse specialist, nurse practitioner) generally require advanced degrees. A registered nurse job, by contrast, usually does not require an advanced degree.

Nurses must ensure that they meet the actual minimum requirements for the nursing position offered in the advanced degree petition. As stated, most nursing positions do not qualify for the advanced degree classification.

he term exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. This standard is lower than the standard for extraordinary ability classification.

If your EB2-NIW petition is based on exceptional ability, you must satisfy the two-step evidence rule.

Step 1-Your evidence must meet the regulatory criteria by a preponderance of the evidence, which means your evidence in establishing exceptional ability objectively meets the parameters of the regulatory description that applies to that type of evidence (referred to as "regulatory criteria").

Step 2- Final merits determination: Evaluate all the evidence together when considering the petition in its entirety for the final merits determination, considering the high level of expertise required for this immigrant classification.

YOUR EVIDENCE MUST MEET AT LEAST THREE OF THE SIX TYPES OF EVIDENCE

The initial evidence must include at least three of the following six types of evidence listed in the regulations:

• An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability; 

• Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least 10 years of full-time experience in the occupation in which he or she is being sought;

• A license to practice the profession or certification for a particular profession or occupation;

• Evidence that the beneficiary has commanded a salary or other remuneration for services that demonstrates the exceptional ability. (To satisfy this criterion, the evidence must show that the beneficiary has commanded a salary or remuneration for services that is indicative of his or her claimed exceptional ability relative to others working in the field);

• Evidence of membership in professional associations; and

• Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

In some cases, evidence relevant to one criterion may be relevant to other criteria.

If these types of evidence do not readily apply to your occupation, you may submit comparable evidence to establish your eligibility. This provides you the opportunity to submit comparable evidence to establish your eligibility if the regulatory standards do not readily apply to your occupation.

TIPS

• General assertions that any of the six objective criteria do not readily apply to the beneficiary's occupation are not acceptable.
• Similarly, claims that USCIS should accept witness letters as comparable evidence are not persuasive. You should explain why the evidence submitted is comparable.

Final Merits Determination

Meeting the minimum requirement by providing at least three types of initial evidence does not, in itself, establish that the beneficiary in fact meets the requirements for exceptional ability classification. The quality of the evidence is important. You must prove to the officer that by a preponderance of the evidence, you have demonstrated that you have a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

You must demonstrate you are above others in the field; qualifications possessed by most members of a given field cannot demonstrate a degree of expertise significantly above that ordinarily encountered. The mere possession of a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning is not by itself considered sufficient evidence of exceptional ability.

Furthermore, formal recognition in the form of certificates and other documentation that are contemporaneous with your claimed contributions and achievements may have more weight than the recommendation letters prepared for the petition recognizing your achievements.

First Prong: The Proposed Endeavor has both Substantial Merit and National Importance

This is generally the easiest of the 3 factors to prove. Working in an area of “substantial intrinsic merit” means work in a field that is valuable to the national interest of the U.S.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.

The evidence varies depending on your field of endeavor, but in any case, it is a good idea to include letters from experts in industry positions (and possibly experts in government and academia), news & media articles from reputable publications, and research & academic reports that explain the importance & value of the particular industry or field of endeavor and also why this field has national importance in the U.S.

Second Prong: The Person is Well Positioned to Advance the Proposed Endeavor

Below is a non-exhaustive list of the types of evidence that tend to show that the person is well positioned to advance a proposed endeavor. This list is not meant to be a checklist or to indicate that any one type of evidence is either required or sufficient to establish eligibility.

Evidence that may demonstrate that the person is well-positioned to advance a proposed endeavor includes, but is not limited to:

• Degrees, certificates, or licenses in the field;

• Patents, trademarks, or copyrights developed by the person;

• Letters from experts in the person’s field, describing the person’s past achievements and providing specific examples of how the person is well positioned to advance the person’s endeavor;

• Published articles or media reports about the person’s achievements or current work;

• Documentation demonstrating a strong citation history of the person’s work or excerpts of published articles showing positive discourse around, or adoption of, the person’s work;

• Evidence that the person’s work has influenced the field of endeavor;

• A plan describing how the person intends to continue the proposed work in the United States;

• A detailed business plan or other description, along with any relevant supporting evidence, when appropriate;

• Correspondence from prospective or potential employers, clients, or customers;

• Documentation reflecting feasible plans for financial support (see below for a more detailed discussion of evidence related to financing for entrepreneurs);

• Evidence that the person has received investment from U.S. investors, such as venture capital firms, angel investors, or start-up accelerators, and that the amounts are appropriate to the relevant endeavor;

• Copies of contracts, agreements, or licenses showing the potential impact of the proposed endeavor;

• Letters from government agencies or quasi-governmental entities in the United States demonstrating that the person is well positioned to advance the proposed endeavor 

• Evidence that the person has received awards or grants or other indications of relevant non-monetary support (for example, using facilities free of charge) from federal, state, or local government entities with expertise in economic development, research, and development, or job creation; and

• Evidence demonstrating how the person’s work is being used by others, such as, but not limited to:

  • Contracts with companies using products that the person developed or assisted in developing;

  • Documents showing technology that the person invented, or contributed to inventing, and how others use that technology; and

  • Patents or licenses for innovations the person developed with documentation showing why the patent or license is significant to the field.

In each case, officers must consider the totality of circumstances to determine whether the preponderance of evidence establishes that the person is well positioned to advance the proposed endeavor.

Third Prong: On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements

In establishing eligibility for the third prong, you should submit evidence relating to one or more of the following factors, as outlined in Matter of Dhanasar:

• The impracticality of a labor certification application;

• The benefit to the United States from the prospective noncitizen’s contributions, even if other U.S. workers were also available; and

• The national interest in the person’s contributions is sufficiently urgent, such as U.S. competitiveness in STEM fields.

More specific considerations may include:

• Whether urgency, such as public health or safety, warrants foregoing the labor certification process;

• Whether the labor certification process may prevent an employer from hiring a person with unique knowledge or skills exceeding the minimum requirements standard for that occupation, which cannot be appropriately captured by the labor certification;

• Whether the person’s endeavor has the potential to generate considerable revenue consistent, for example, with economic revitalization; and

• Whether the person’s endeavor may lead to potential job creation.

There are specific evidentiary considerations relating to STEM degrees and fields, although the analysis is the same regardless of endeavor, so these considerations may apply in non-STEM endeavors where the petitioner demonstrates that such considerations are applicable. USCIS recognizes the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.

To identify a critical and emerging technology field, officers consider governmental, academic, and other authoritative and instructive sources, and all other evidence submitted by the petitioner. The lists of critical and emerging technology subfields published by the Executive Office of the President, by either the National Science and Technology Council or the National Security Council, are examples of authoritative lists. 

Officers may find that a STEM area is important to competitiveness or security in a variety of circumstances, for example, when the evidence in the record demonstrates that an endeavor will help the United States to remain ahead of strategic competitors or current and potential adversaries, or relates to a field, including those that are research and development-intensive industries, where appropriate activity and investment, both early and later in the development cycle, may contribute to the United States achieving or maintaining technology leadership or peer status among allies and partners.

With respect to the first prong, as in all cases, the evidence must demonstrate that a STEM endeavor has both substantial merit and national importance. Many proposed endeavors that aim to advance STEM technologies and research, whether in academic or industry settings, not only have substantial merit in relation to U.S. science and technology interests but also have sufficiently broad potential implications to demonstrate national importance. On the other hand, while proposed classroom teaching activities in STEM, for example, may have substantial merit in relation to U.S. educational interests, such activities, by themselves, generally are not indicative of an impact in the field of STEM education more broadly, and therefore generally would not establish their national importance.

For the second prong, as mentioned above, the person’s education and skillset are relevant to whether the person is well positioned to advance the endeavor. USCIS considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM areas important to U.S. competitiveness or national security, an especially positive factor to be considered along with other evidence for purposes of the assessment under the second prong.

Persons with a Ph.D. in a STEM field, as well as certain other persons with advanced STEM degrees relating to the proposed endeavor, have scientific knowledge in a narrow STEM area since doctoral dissertations and some master’s theses concentrate on a particularized subject matter. Adjudicators consider whether that specific STEM area relates to the proposed endeavor. Even when the area of concentration is in a theoretical STEM area (theoretical mathematics or physics, for example), it may further U.S. competitiveness or national security as described in the proposed endeavor.

Examples of evidence that can supplement the person’s education are listed above, but a petitioner may submit any relevant evidence, including letters from interested government agencies to show how the person is well positioned to advance the proposed endeavor. A degree in and of itself, however, is not a basis to determine that a person is well positioned to advance the proposed endeavor.

Finally, with respect to the third prong, it is the petitioner’s burden to establish that factors in favor of granting the waiver outweigh those that support the requirement of a job offer and thus a labor certification.

When evaluating the third prong and whether the United States may benefit from the person’s entry, regardless of whether other U.S. workers are available (as well as other factors relating to prong three discussed above, such as urgency), USCIS considers the following combination of facts contained in the record to be a strong positive factor:

• The person possesses an advanced STEM degree, particularly a Ph.D.;

• The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and

• The person is well positioned to advance the proposed STEM endeavor of national importance.

The benefit is especially weighty where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness, or when the petition is supported by letters from interested U.S. government agencies.

There may be unique aspects of evidence submitted by an entrepreneurial petitioner undertaking a proposed endeavor, including through an entity based in the United States in which the petitioner typically possesses (or will possess) an ownership interest, and in which the petitioner maintains (or will maintain) an active and central role such that the petitioner's knowledge, skills, or experience would significantly advance the proposed endeavor.

When evaluating whether such petitions satisfy the three-pronged framework, officers may consider the fact that many entrepreneurs do not follow traditional career paths and there is no single way in which an entrepreneurial start-up entity must be structured.

In addition to the more generally applicable evidence described above, an entrepreneur petitioner may submit the following types of evidence to establish that the endeavor has substantial merit and national importance, that the petitioner is well positioned to advance the endeavor, and that, on balance, it would be beneficial to waive the job offer and thus labor certification requirements.

Evidence of Ownership and Role in the U.S.-Based Entity

The petitioner may have an ownership interest in an entity based in the United States, of which the petitioner may also be the founder or co-founder. The petitioner may also play an active and central role in the operations of the entity as evidenced by the petitioner’s appointment as an officer (or similar position of authority) of the entity or in another key role within the entity. Such evidence may have probative value in demonstrating the petitioner is well positioned to advance the endeavor.

Degrees, Certifications, Licenses, Letters of Experience

This evidence may indicate that the petitioner has knowledge, skills, or experience that would significantly advance the proposed endeavor being undertaken by the entity. Education and employment history, along with other factors related to the petitioner’s background, may serve to corroborate the petitioner’s claims. Some examples include successfully leading prior start-up entities or having a combination of relevant degrees and experience to equip the petitioner to advance the proposed endeavor.

Investments

An investment, binding commitment to invest, or other evidence demonstrating a future intent to invest in the entity by an outside investor, consistent with industry standards, may provide independent validation and support of a finding of the substantial merit of the proposed endeavor or the petitioner is well placed to advance the proposed endeavor. This investment may come from persons, such as angel investors, or established organizations, such as venture capital firms. Because different endeavors have different capital needs, USCIS also considers the amount of capital that would be appropriate to advance the endeavor in determining whether the petitioner has secured sufficient investments.

Incubator or Accelerator Participation

Incubators are private or public entities that provide resources, support, and assistance to entrepreneurs to foster the growth and development of an idea or enterprise. Accelerators are generally private venture capital entities and focus on helping entrepreneurs and their start-ups speed the launch, growth, and scale of their businesses.

Officers may consider evidence of an entrepreneur’s admission into an incubator or accelerator as an endorsement of the petitioner’s proposed plan or past track record, and the petitioner is well positioned to advance the endeavor. Petitioners may submit evidence of the past success of the incubator for officers to consider when evaluating this evidence.

Awards or Grants

Relevant funds may come from federal, state, or local government entities with expertise in economic development, research, and development, or job creation. In addition, awards or grants may be given by other entities, such as policy or research institutes. Like investment from outside investors, this evidence may provide independent validation and support for a finding of substantial merit, national importance, or both, of the proposed endeavor or the petitioner being well positioned to advance the proposed endeavor.

Intellectual Property

Intellectual property, including relevant patents held by the petitioner or one of the petitioner’s current or prior start-up entities, accompanied by documentation showing why the intellectual property is significant to the field or endeavor, may serve as probative evidence of a prior record of success and potential progress toward achieving the endeavor. The petitioner should submit evidence to document how the petitioner contributed to the development of the intellectual property and how it has or may be used internally or externally.

Published Materials about the Petitioner, the Petitioner’s U.S.-Based Entity, or Both

Relevant published materials may consist of printed or online newspaper or magazine articles or other similar published materials evidencing that the petitioner or the petitioner’s entity, with some reference to the petitioner’s role, has received significant attention or recognition by the media. Petitioners may submit evidence of the media outlet’s reputation for officers to consider when evaluating this evidence.

Revenue Generation, Growth in Revenue, and Job Creation

Relevant growth metrics may support that the proposed endeavor, the petitioner’s start-up entity, or both, has substantial merit or that the petitioner is well positioned to advance the proposed endeavor. Such evidence may include a showing that the entity has exhibited growth in terms of revenue generation, jobs created in the United States, or both, and the petitioner’s contribution to such growth.

This evidence may also support that the proposed endeavor, the petitioner’s start-up entity, or both, have national importance when coupled with other evidence, such as the location of the current or proposed start-up entity in an economically depressed area that has benefited or will benefit from jobs created by the start-up entity.

Letters and Other Statements from Third Parties

Letters may be from, for example, relevant government entities, outside investors, or established business associations with knowledge of:

• The research, products, or services developed by the petitioner, the petitioner’s entity, or both; or the petitioner’s knowledge, skills, or

• Experience that would advance the proposed endeavor.

While entrepreneurs typically do not undergo the same type of peer review common in academia, entrepreneurs may operate in a variety of high-tech or cutting-edge industries that have their industry or technology experts that provide various forms of peer review.

Additionally, the merits of the entrepreneur’s business, business plan, product, or technology may undergo various forms of review by third parties, such as prospective investors, retailers, or other industry experts. Accordingly, letters and other statements from relevant third-party reviewers may have probative value in demonstrating the substantial merit and national importance of the endeavor and that the individual is well positioned to advance the endeavor.

Generally, many entrepreneurial endeavors are measured in terms of revenue generation, profitability, valuations, cash flow, or customer adoption. However, other metrics may be of equal importance in determining whether the petitioner has established each of the three prongs.

As noted in Matter of Dhanasar, “many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution.”Accordingly, petitioners are not required to establish that the proposed endeavor is more likely than not to ultimately succeed based solely on the typical metrics used to measure entrepreneurial endeavors (although such showings may be considered favorably).

They instead need to show that the proposed endeavor has both substantial merit and national importance, that the petitioner is well positioned to advance the proposed endeavor, and 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.

Evidence establishing the petitioner’s past entrepreneurial achievements and that corroborates projections of future work in the national interest are favorable factors. Claims lacking corroborating evidence are not sufficient to meet the petitioner’s burden of proof. As in all cases, officers must consider the totality of circumstances to determine whether each of the three prongs is established by a preponderance of the evidence.