Policies on Determining EB-2 Petitions

GENERAL

The employment-based second preference EB-2 visa is for a person who is a member of the professions holding an advanced degree or its equivalent, or a person who has exceptional ability.^[1]

A certified Application for Permanent Employment Certification from the Department of Labor (DOL) on ETA Form 9089 is generally required, though DOL provides for a blanket (Schedule A) certification in certain situations.

As part of an EB-2 petition process, an employer must be able to demonstrate an ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence status. The employer may use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay the beneficiary’s wage. If the employer employs more than 100 workers, a statement from a financial officer of the organization which establishes the prospective employer's ability to pay the proffered wage is acceptable. Additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted as appropriate.

Further, an EB-2 petition beneficiary may request a waiver of labor certification in the national interest through the petition filed with USCIS. Because the national interest waiver (NIW) waives the job offer, the beneficiary does not need to demonstrate an employer’s ability to pay a wage and can choose to file the EB-2 petition by himself or herself as a self-petitioner.

When determining whether to grant an NIW request, USCIS considers the following factors:

• The proposed endeavor has both substantial merit and national importance.
• The beneficiary or self-petitioner is well positioned to advance the proposed endeavor.
• On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

Regarding the family of an EB-2 visa holder, if the beneficiary’s I-140 petition is approved, his or her spouse and unmarried children under 21 may be eligible to apply for admission to the United States in E-21 and E-22 immigrant status, respectively.

ELIGIBILITY FOR EB-2

A.   Advanced Degree Professionals

      1.  Eligibility

To qualify for this immigrant classification, a professional with an advanced degree must meet the following requirements:

• The beneficiary or self-petitioner (seeking a national interest waiver of a job offer) must be a member of the professions holding an advanced degree or foreign equivalent degree;
• The requirement for a minimum advanced degree or foreign equivalent degree of the proffered position is determined by either the Form ETA 750B (application for alien employment certification) or Parts J-L of Form ETA 9089 (application for permanent labor certification); and
• The beneficiary must have not only had the advanced degree or its equivalent on the date that the permanent labor certification application was filed, but also must have met all the requirements needed for entry into the proffered position at that time. 

     2.   Evidence

An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above that of baccalaureate.  A U.S. baccalaureate degree or a foreign equivalent degree followed by at least 5 years of progressive experience in the specialty is considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the beneficiary must have a U.S. doctorate or a foreign equivalent degree (such as a JD for an attorney in the U.S.).

A beneficiary can satisfy the advanced degree requirement by holding either a:

• U.S. master’s degree or higher or a foreign degree evaluated to be the equivalent of a U.S. master’s degree or higher (shown by a diploma with an official academic record listing coursework); or
• U.S. bachelor’s degree or a foreign degree evaluated to be the equivalent of a U.S. bachelor’s degree, plus 5 years of progressive, post-degree work experience.

On the other hand, a beneficiary who does not possess at least a U.S. bachelor’s degree or a foreign equivalent degree is not eligible for this classification.

B.   Exceptional Ability

      1.   Eligibility

A beneficiary or self-petitioner may qualify for the exceptional ability visa preference classification if:

• He or she has exceptional ability in the sciences, arts, or business;
• He or she will substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future; and
• His or her services in one of those fields are sought by an employer in the United States.

The 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 (EB-1A).

     2.   Evidence

A two-step analysis is applied to evaluate the evidence submitted with the petition to determine eligibility for exceptional ability.

Step One—Satisfaction of at least 3 of 6 Listed Criteria

First, the evidence of record is assessed and determined (by a preponderance of the evidence, meaning more likely than not) whether it meets at least three of the listed six regulatory criteria as follows:

• 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 exceptional ability (the evidence showing 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 (which can be satisfied by reference letters).

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

Additionally, if the evidence listed above does not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility. When evaluating such comparable evidence, USCIS considers whether the criteria are readily applicable to the beneficiary's occupation and, if not, whether the evidence provided is truly comparable to the criteria listed in the regulation.

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. The petitioner should explain why the evidence it has submitted is comparable.

Step Two—Final Merits Determination

Second, a final merits determination is conducted based on the evidence in its entirety. At this step, USCIS considers not only the quantity but also the quality, of the evidence, and for each piece of the evidence, examines its relevance, probative value, and credibility in the context of the totality of the evidence.

For instance, USCIS would assess if the evidence of a beneficiary's membership also indicates the beneficiary having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. The petitioner must demonstrate by the evidence that the beneficiary is 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. In addition, 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.

Moreover, reference letters recognizing the beneficiary's claimed contributions and achievements with supporting documentation in the record have more weight than those without but with only general assertions of such recognition.

     3.   Schedule A, Group II Permanent Labor Certification

Schedule A, Group II permanent labor certification for persons of "exceptional ability in the sciences or arts" (including college and university teachers, and immigrants of exceptional ability in the performing arts) is distinct from classification as a person of "exceptional ability in the sciences, arts, professions, or business." Under the U.S. Department of Labor (DOL)'s regulations, an employer seeking permanent labor certification on behalf of a person of "exceptional ability in the sciences or arts" may apply directly to USCIS for Schedule A, Group II permanent labor certification instead of applying to DOL for issuance of a permanent labor certification.

C.   Professional Athletes

      1.   Eligibility

The Immigration and Nationality Act (INA) defines professional athletes to allow them to retain the validity of the underlying permanent labor certification if they change employers. These athletes may qualify for exceptional ability classification. Specifically, the precedent decision Matter of Masters held that a professional golfer could, if he was otherwise eligible, qualify for exceptional ability classification in the arts.

This holding has been interpreted to apply to exceptional ability petitions filed on behalf of any athlete. However, the fact that the beneficiary has signed a contract to play for a major league team may not be sufficient to establish exceptional ability as a professional athlete.

Definition of Professional Athlete

For purposes of this classification, the term “professional athlete” means a person who is employed as an athlete by:

• A team that is a member of an association of six or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or
• Any minor league team that is affiliated with such an association.

Permanent Labor Certification Validity

A petition for classification of a professional athlete is supported by an underlying permanent labor certification filed on the beneficiary’s behalf, which remains valid even if the athlete changes employers, so long as the new employer is a team in the same sport as the team that filed the petition.

Employers filing permanent labor certification applications on behalf of beneficiaries to be employed as professional athletes on professional sports teams file permanent labor certification applications under special procedures for professional athletes directly with the appropriate DOL processing center.

     2.   Evidence

As with all petitions for persons of exceptional ability, the petitioner must initially provide documentation demonstrating that the beneficiary qualifies for exceptional ability classification as specified in the regulations. However, the submission of evidence that meets the three required regulatory criteria does not necessarily establish that the beneficiary is qualified for the classification. USCIS evaluates the quantity and quality of such evidence in determining whether the petitioner has met its burden to show that the beneficiary is qualified for the classification.

Similarly, an approved permanent labor certification submitted on behalf of a professional athlete does not prove that the beneficiary qualifies as an athlete of exceptional ability. USCIS still looks for evidence of exceptional ability beyond the mere existence of a contract with a major league team or an approved permanent labor certification.

An approved permanent labor certification submitted on behalf of the beneficiary does not bind USCIS to a determination that the person is of exceptional ability. Notwithstanding the grant of a permanent labor certification, the beneficiary may, for any number of reasons, be unable to fulfill the underlying purpose of the petition.

Many athletes, for example, enjoy substantial signing bonuses, but may not, thereafter, prove to be of “major league,” let alone exceptional caliber. Similarly, the fact that a beneficiary played for a portion of a season for a major league team does not automatically establish that the beneficiary will continue to play at an exceptional ability level. USCIS deems it inappropriate to approve an immigrant visa petition on behalf of a major league player on the basis of exceptional ability if the beneficiary is unlikely to continue to perform the duties specified in the underlying petition for a reasonable period following approval of lawful permanent resident status.

Additionally, the beneficiary could be cut from the major league roster, may announce his permanent retirement as a player in the sport, or suffer from a career-ending injury prior to adjudication of the petition, thereby removing the job offer that formed the basis of the petition, which would result in a denial of the petition.

D.   National Interest Waiver of Job Offer

The INA has since 1990 provided that a person of exceptional ability may obtain a waiver of the job offer requirement if USCIS deems such waiver to be in the “national interest.” A subsequent technical amendment extended the job offer waiver to certain professionals. This waiver provision applies only to the second preference (EB-2) classification for members of the professions holding advanced degrees and persons of exceptional ability. This waiver of the job offer is known as the national interest waiver.

A waiver of a job offer also includes a waiver of the permanent labor certification requirement. In support of the petition, however, the petitioner must submit the employee-specific portions of a permanent labor certification (without DOL approval). The petitioner may submit either Form ETA 750B or Form ETA 9089. To establish eligibility, the petitioner must demonstrate that:

• The person qualifies as either a member of the professions holding an advanced degree or as a person of exceptional ability; and
• The waiver of the job offer requirement, and thus, the labor certification requirement, is in the “national interest.”

For a person of exceptional ability, the EB-2 petition should show that the person’s presence in the United States would substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future. Even if the petitioner demonstrates such exceptional ability, if the petitioner is seeking a waiver of the job offer, the petitioner must also demonstrate the additional requirement of national interest. 

National interest may be shown by the beneficiary’s proposed endeavor’s national or global implications in the fields such as business, entrepreneurism, science, technology, culture, health, or education.

     1.   Standard of review

The petitioner carries the burden to establish that the waiver of the job offer requirement is in the national interest. USCIS reviews every petition on a case-by-case basis. USCIS may grant a national interest waiver as a matter of discretion if the petitioner demonstrates eligibility by a preponderance of the evidence by satisfying the following three prongs as outlined in Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016):

• The person’s proposed endeavor has both substantial merit and national importance;
• The person is well positioned to advance the proposed endeavor; and
• On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

     2.   Overview of the Dhanasar three prongs

First Prong: The proposed endeavor has both substantial merit and national importance.

When reviewing the proposed endeavor, USCIS determines whether the evidence presented shows, by a preponderance of the evidence, the proposed endeavor has substantial merit and national importance. The term “endeavor” is more specific than the general occupation; a petitioner should offer details not only as to what the occupation normally involves but what types of work the person proposes 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 person 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, USCIS may consider evidence of the endeavor’s potential significant economic impact. But merit may be established without immediate or quantifiable economic impact. Further, endeavors related to research, pure science, and the furtherance of human knowledge may qualify regardless of whether the potential accomplishments in those fields are likely to generate economic benefits for the United States.”

USCIS also examines the national importance of the specific endeavor proposed by considering its potential prospective impact with a focus on the nature of the proposed endeavor, rather than only the geographic breadth of the endeavor.

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

In determining national importance, the USCIS’ analysis focuses on what the beneficiary 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 for the purpose of establishing eligibility for a national interest waiver.

Ultimately, if the evidence of record demonstrates that the person’s 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.

Second Prong: The person is well positioned to advance the proposed endeavor.

Unlike the first prong concentrating 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 following:

• The person’s education, experience, skills, knowledge, and track record of success in related or similar endeavors;
• 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.

The petitioner should submit evidence to document the person’s past achievements and corroborate projections related to the proposed endeavor to show that the person is 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 succeed eventually. However, unsubstantiated or implausible claims would not meet the petitioner’s burden of proof.

Evidence tending to show that the person is well positioned to advance a proposed endeavor includes, but is not limited to, the following:

• 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;
• 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, USCIS considers the totality of circumstances to determine whether the preponderance of the 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.

Once USCIS has determined that the petitioner met the first two prongs, it then analyzes the third prong. This last prong requires the petitioner 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, an NIW outweighs the benefits inherent to the labor certification process, which primarily focuses on a geographically limited labor market. And Congress entrusted the Secretary of Homeland Security to balance this interest when adjudicating NIW requests.

Therefore, for the third prong, USCIS assesses whether the person’s endeavor and the person's 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.

Therefore, in establishing eligibility for the third prong, petitioners may submit evidence relating to one or more of the following factors outlined in 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 consistently, for example, with economic revitalization; and
• Whether the person’s endeavor may lead to potential job creation.

     3.   Specific evidentiary considerations for persons with advanced degrees in science, technology, engineering, or mathematics (STEM) fields

There are specific evidentiary considerations relating to STEM degrees and fields, although the analysis is the same regardless of the 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, USCIS considers 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 White House are examples of authoritative lists. USCIS may find that a STEM area is important to competitiveness or security in various 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.

Regarding the first prong, the evidence must, as in all cases, demonstrate that a STEM endeavor has both substantial merit and national importance. Many proposed endeavors aiming 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 instance, 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 significant 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, and certain others 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. USCIS then considers 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 pertinent evidence, including letters from interested government agencies as discussed below, 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, concerning the third prong, it is the petitioner’s burden to show 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 areas 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 as discussed below.

     4.   The role of interested government agencies or quasi-governmental entities

Letters from interested government agencies or quasi-governmental entities in the United States, such as NASA, AFRL and other federally funded research and development centers, can be helpful evidence and, depending on the contents of the letters, can relate to all three prongs. Specifically, letters from an interested government agency or quasi-governmental entity could prove favorable for purposes of the first prong if, for instance, they establish that the agency or entity has expertise in the proposed endeavor and that the proposed STEM endeavor promises to advance a critical and emerging technology or is otherwise important for purposes of maintaining the United States’ technological prominence.

Detailed letters of government or quasi-governmental interest that provide relevant information about how well positioned the person is to advance the endeavor are valuable for purposes of assessing the second prong. Finally, an interested government agency or quasi-governmental entity can help explain how granting the waiver may outweigh the benefits of the job offer and labor certification requirement by explaining a particular urgency or detailing how the United States would benefit from the prospective noncitizen’s contributions, even if other U.S. workers are available.

     5.   Specific evidentiary considerations for entrepreneurs

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, USCIS 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's being 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.

USCIS 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's being well positioned to advance the endeavor. Petitioners may submit evidence of the past success of the incubator for USCIS 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 USCIS 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 revenue generation, job creation 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 different high-tech or cutting-edge industries with their own industry or technology experts providing 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 by revenue generation, profitability, valuations, cash flow, or customer adoption. However, other metrics may be equally important to determine whether the petitioner has established each of the three prongs.  Note that 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).

Instead, petitioners 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, USCIS considers the totality of circumstances to determine whether each of the three prongs is established by a preponderance of the evidence.

 

Footnote:

--------------------------------------------------------------------------------------------------------------

[1]  The source of information about this blog is USCIS official website uscis.gov.

 

DISCLAIMER:

This blog does not, and is not intended to, constitute legal advice; instead, it is for general informational purposes only.  The information presented in this blog may not reflect the most up-to-date legal developments and is subject to change at any point in time.   The information presented in this blog does not create an attorney-client relationship.  Readers of this blog should contact their attorney to obtain advice regarding any particular legal matter.  No readers should act or refrain from acting based on the information presented in this blog without first seeking legal advice from counsel in the relevant jurisdiction.  No representations are made that this blog is error-free.  Altaffer & Chen PLLC expressly disclaims all liabilities arising from any actions taken or refrained from based on the information presented in this blog.

11/24/2022