Washington, D.C. U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual guidance on adjudicating national interest waiver requests along with I-140 petition, including special considerations for persons with advanced degrees in science, technology, engineering, and math (STEM) fields and entrepreneurs. USCIS is now clarifying how the national interest waiver can be used by STEM graduates and entrepreneurs, as well as the significance of letters from governmental and quasi-governmental entities. This updated guidance serves to promote effective and efficient processing of benefits and is consistent with removing barriers to legal immigration under Executive Order (EO) 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. Earlier today, Biden Administration took other executive measures to attract and retain STEM talents globally.
This new guidance is effective immediately and supersedes any related prior guidance.
In addition to providing evidence of an advanced degree or exceptional ability, those seeking a national interest waiver must also meet three factors that USCIS uses to determine, in its discretion, whether it is in the national interest to waive the requirement of a job offer, and thus the labor certification. The three factors USCIS considers for a national interest waiver are whether:
- The person’s proposed endeavor has both substantial merit and national importance;
- The person is well positioned to advance the proposed endeavor; and
- It would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirement. [PERM Labor certification will not be required]
Those seeking a national interest waiver may self-petition and would not need an employer to file or sponsor the permanent residency petition.
This is a very significant development for highly skilled or highly trained STEM graduates or professionals. This policy will be helpful to those professionals:
- whose field of work is in STEM or any other field which has both the substantial merit or distinction and it is nationally or internationally important;
- who is well-positioned or capable through education, experience, research, contribution or combination of these to advance their work further; and
- their work is so important that United States as a country will benefit in waiving the PERM labor certification requirement (recruitment process).
Congress 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. An officer assesses whether the person’s endeavor and the person being 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.
Examples of supporting evidence which can be submitted with the petition:
- 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.
- evidence that one is or will engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness.
- Whether it is an important field, such as public health or safety.
- Whether the person has a unique knowledge or skills exceeding the minimum requirements standard for that occupation.
- Whether the person’s endeavor has the potential to generate considerable revenue consistent, for example, with economic revitalization.
- Whether the person’s endeavor may lead to potential job creation.
- evidence of an advanced STEM degree, particularly a Master's or Ph.D.
- Evidence of ownership and role in the U.S.-based legal entity.
- Degrees, Certifications, Licenses, Letters of Experience.
- Intellectual Property: Patents, trademarks, or copyrights developed by the person or the companies or organizations he or she is involved.
- Published Materials about the Petitioner, the Petitioner’s U.S.-Based Entity, or Both.
- Revenue Generation, Growth in Revenue, and Job Creation.
- 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.
- 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.
- Investments from venture capital, angel investors or seed investors or self-funding.
- Incubator or Accelerator Participation.
- 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 (see below for a more detailed discussion of supporting evidence from interested government agencies and quasi-governmental entities).
- 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. Grants or awards from other sources too could be relevant.
- 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.
Also it is important to articulate those evidence in a legal brief showing how the Applicant and their endeavor meets the NIW requirements.
Note: This is a blog post by Adhikari Law PLLC and should not be construed as a legal advice. Changes in immigration policies and procedures are complex and may require a consultation with an experienced immigration lawyer.
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