Can you receive a green card under the EB-2 classification (National Interest Waiver) as the developer of an innovative application that improves the health and wellness of chronically ill U.S. Citizens?
In this blog post, we share with you how our office was able to do just that despite initial challenges that were presented in our client’s case and previous unsuccessful filings in other visa classifications, where the adjudicating officer refused to recognize the applicant’s extraordinary ability in the field of health and business development despite a plethora of documentary evidence of his unique skills.
An Overview: What are the EB-2 NIW Requirements?
To understand our client’s case and the burden of proof, let’s first discuss the general requirements to qualify for a National Interest Waiver (NIW) under the EB-2 immigrant classification.
The employment-based, second preference immigrant visa category is available to individuals who are members of the professions that hold an advanced degree or its equivalent, or to foreign nationals who are deemed persons of exceptional ability in their particular field. Those that are working in an area of substantial merit and of national importance, or who have made demonstrated substantial contributions in their field or industry, showing that they have the potential to work in an area of national interest may be eligible for a National Interest Waiver. The National Interest Waiver seeks to bypass the traditional labor certification requirement based upon the foreign national’s work in the national interest of the United States.
What does it mean to be a member of the professions?
To demonstrate that you are a member of the professions you must provide documentary evidence, such as: an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty.
If a doctoral degree is customarily required for your profession, you must have a United States doctorate or foreign equivalent degree. In addition, if a license is required for your particular profession, you must provide evidence that you possess a valid license to practice your profession or certification for your profession or occupation qualifying for the NIW category.
What does it mean to have exceptional ability?
If an applicant does not have an advanced degree or the equivalent, they may still qualify for the National Interest Waiver by showing exceptional ability in the sciences, arts, or business. Persons deemed to have exceptional ability are those that have “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”
What are the NIW criteria?
As mentioned above, the national interest waiver is a subcategory of the EB-2 immigrant classification for those aliens who wish to request that the Labor Certification be waived because their work is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who can demonstrate exceptional ability and whose employment in the United States would greatly benefit the nation. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.
To be successful, NIW applicants must demonstrate that they have either an advanced degree or exceptional ability, and that they meet the Dhanasar criteria:
- The proposed endeavor has both substantial merit and national importance.
- You are well positioned to advance the proposed endeavor.
- It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.
Satisfaction of the following criteria is needed to show that the applicant has the relevant higher education or professional experience needed to carry out the work of national importance:
- Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
- Letters documenting at least 10 years of full-time experience in your occupation
- A license to practice your profession or certification for your profession or occupation
- Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
- Membership in a professional association(s)
- Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
- Other comparable evidence of eligibility is also acceptable.
Our Client’s Case
In our client’s case “John” was a renowned businessman and entrepreneur working in the health and wellness industry. He was the founder of several innovative business ventures that revolutionized the way chronic pain is treated among patients. While “John” did not have a job offer, he was the creator of a cutting edge and groundbreaking health and wellness application that took a holistic approach to helping patients manage their chronic pain and improving their qualify of life.
We were able to overcome initial challenges by putting together an ironclad National Interest Waiver EB-2 case making it clear that the invention and development of our client’s innovative application, was clearly an endeavor of substantial merit and national importance, because such application had a demonstrated track record of improving the health and wellness of chronically ill patients in the United States, by providing holistic solutions for severe pain management conditions for incurable afflictions such as rheumatoid arthritis.
Our attorneys were able to show that our client’s application was a great alternative to the use of expensive medications and focused on a multifaceted approach, that gave the patient the ability to interact with chronic pain specialists, mindfulness experts, physical therapists, and nutritionists, to create a comprehensive health and wellness-based program tailored for their specific needs to help them manage and reduce their pain. We provided research based and statistical documentation showing that such a holistic program was proven to reduce mental health issues commonly experienced by those dealing with chronic pain. We also argued that the application introduced cutting edge technology including an integrated coaching type of program putting important tools at a patient’s disposal, such as cognitive behavioral therapy, mindfulness, meditation, and physically therapy to help patients thrive in their day to day lives.
More importantly, we were able to demonstrate by way of detailed expert opinion letters by top individuals in the field of medicine, business, and entrepreneurship, that the development of this client’s application was of great national importance because it was considered the first application of its kind to adequately address and improve the mental health of chronic patients facing difficult circumstances. Ultimately, the development of our client’s wellness application had the great potential to reduce the exorbitant medical costs of patients suffering from chronic conditions that could be easily managed by a holistic and integrative approach focusing on mental and physical health. Furthermore, the expert letters proved that based on statistical analysis and research on chronic conditions, our client’s application would greatly reduce the burden on the United States healthcare system by helping Americans better manage the pain, depression, stresses, and anxieties stemming from their condition without the enormous costs associated with the treatment of their conditions at over $4 trillion annually.
In our detailed legal brief supporting our client’s application, we carefully addressed the three Dhanasar criteria of the National Interest Waiver, showing that not only was this endeavor of national importance, but that the applicant could demonstrate that by way of his advanced degrees from top U.S. institutions, as well as extensive professional experience in the health and wellness industry that he had the capacity to advance the proposed endeavor. Finally, we addressed the clear implications that would befall the United States if a labor certification application would be required of him, including his unique background as a health and wellness strategic planning executive and business development professional. Our client had a rich background in entrepreneurship and was at the helm of very successful ventures that had no comparison in the health and wellness industry. He not only developed this new and innovative holistic wellness application, but also had experience providing the first juice cleanse concept and home delivery service in his country. He made groundbreaking contributions including implementing new strategies for farming vegetables. But more than that he had been involved at the executive level working with hospitals in his country to improve objectives, reduce patient wait times, and improve operating room installations and operations with a patient-centered approach.
Our client had also been an active member of numerous distinguished health, business, and entrepreneurship professional associations and was widely published in the major media in various medical journals in the United States. Such publications discussed his role in reshaping the health and wellness industry and how his innovative platform was improving the mental health of individuals dealing with chronic medical conditions. These articles were instrumental in showing that he was a disruptor in the industry capable of making significant positive change for the benefit of the U.S. health care system and Americans suffering from incurable diseases. Finally, our client’s expert opinion letters demonstrated that he received great praise and recognition from his peers, who were at the top of their respective industries and recognized the clear benefit that his application would provide to Americans and the health care system as a whole. To further bolster his application, we provided evidenced based research and literature including facts and statistics to show the enormous costs, earnings losses, and great mental health challenges facing chronically ill patients.
With this evidence we were easily able to demonstrate that our client satisfied the National Interest Waiver criteria, and we are proud to say that our client’s National Interest Waiver was indeed successful. He is now on his way to apply for permanent residence in the United States and will continue to make groundbreaking contributions with his innovative ideas and leadership in his industry.
Cases like these are what truly makes our office excited about immigration law. We are inspired on a day-to-day basis by the creative business ideas and great accomplishments of our clients. We make it our mission to build the strongest cases possible by addressing both the strengths and weaknesses of a case with a client and working in a collaborative way to ensure that each criterion has been carefully demonstrated. John’s story goes to show that you do not need to have a job offer to receive permanent residence in the United States. However, you must show that you have created a body of work that is in a field of national importance, and that you have either the exceptional ability to carry that endeavor forward, or the relevant advanced degrees to make a positive impact in the national interest of the United States.
If you are an entrepreneur or business professional of exceptional ability or member of the professions, that has created a business venture with the potential to positively impact the United States, you may be eligible for the EB-2 National Interest Waiver classification. If you would like to discuss your eligibility for the NIW application, please contact our office today. We would be happy to discuss your options with you.
Questions? If you would like to schedule a consultation, please text 619-569-1768 or call 619-819-9204.
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