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NIW RFE Under the New Three-prong Test
作者:YZ律师     发文时间: 2018年01月20日 14:46:00
YZ律师

In December 2016, the Administrative Appeals Office (AAO) of the U.S.
Citizenship and Immigration Services (USCIS) issued a precedent decision,
Matter of Dhanasar, which overturned nearly two decades of precedent on how
an individual qualifies for the National Interest Waiver (NIW).

Matter of Dhanasar provides that after eligibility for EB-2 classification
has been established, USCIS may grant a NIW if the petitioner demonstrates,
by a preponderance of the evidence, that:

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

USCIS has since been adjudicating NIW petitions using this new three-prong
test. We recently received a Request for Evidence (RFE) in one of our NIW
cases and we would like to share the same with you. In the case we submitted
, the beneficiary performs research in food science. USCIS found that the
petitioner met the first prong of the test based on evidence presented, that
is, the beneficiary’s work has both substantial merit and national
importance. USCIS requested that additional evidence be submitted under the
second and third prong of the test as follows:

2. Well-positioned to advance the proposed endeavor

Please submit evidence to establish that the beneficiary is well positioned
to advance the proposed endeavor. Evidence which best establishes that the
beneficiary is well positioned to advance the proposed endeavor will
document the beneficiary’s qualifications (skills, experience and track
record), support (financial and otherwise) and commitment (plans and
progress) to drive the endeavor forward, and will support projections of
future work in the proposed endeavor. USCIS may consider factors including,
but not limited to, the following:

• To show a beneficiary’s education, skills, knowledge and record
of success in related or similar efforts, the petitioner may submit one or
more pieces of evidence from the following:
o Degrees, certificates or licenses in the field;
o Patents, trademarks or copyrights owned by the beneficiary;
o Letters from experts in the beneficiary’s field, describing the
beneficiary’s past achievements and providing specific examples of how the
beneficiary is well positioned to advance his or her endeavor;
o Published articles and/or media reports about the beneficiary’s
achievements or current work;
o Documentation demonstrating a strong citation history;
o Evidence that the beneficiary’s work has influenced his or her field
of endeavor;
o Evidence demonstrating the beneficiary has a leading, critical or
indispensable role in the endeavor or similar endeavors; and
o Evidence showing that the beneficiary’s past inventions or innovations
have been used or licensed by others in the field.

• To show a model or plan for future activities, the petitioner may
submit one or more pieces of evidence from the following non-exhaustive
list:
o A plan describing how the beneficiary intends to continue his or her
work in the U.S.
o A detailed business model, when appropriate;
o Correspondence from prospective/potential employers, clients or
customers; and
o Documentation reflecting feasible plans for financial support.

• To show progress towards achieving the proposed endeavor, a
petitioner may submit one or more pieces of evidence from the following non-
exhaustive list:
o Evidence of grants the beneficiary has received listing the amount and
terms of grants, as well as the grantees;
o Copies of contracts, agreements or licenses resulting from the proposed
endeavor or otherwise demonstrating the beneficiary is well positioned to
advance the proposed endeavor;
o Evidence of achievements that the beneficiary intends to build upon or
further develop (including the types of documentation listed under “
beneficiary’s education, skills, knowledge and record of success in related
or similar efforts); and
o Evidence demonstrating the beneficiary has a leading, critical or
indispensable role in the endeavor.

• To show interest of potential customers, investors or other
relevant beneficiaries, a petitioner may submit one or more piece of
evidence from the following non-exhaustive list:
o Letters from a government entity demonstrating its interest in the
proposed endeavor;
o Evidence that the beneficiary has received investment from U.S.
investors, such as venture capital firms, angel investors or start-up
accelerators, in amounts that are appropriate to the relevant endeavor;
o Evidence that the beneficiary has received awards, grants or other
indications of relevant non-monetary support (e.g. using facilities free of
charge, etc.) from Federal, State or local government entities with
authority over the field of endeavor;
o Evidence demonstrating how the beneficiary’s work is being used by
others, such as:
 Contracts with companies using products, projects or services
that the beneficiary developed or assisted in developing;
 Documents showing licensed technology or other procedural or
technological advancements developed in whole or in part by the beneficiary
and relied upon by others; and
 Patents or licenses awarded to the beneficiary with
documentation showing why the particular patent or license is significant to
the field.

3. Balancing factors to determine waiver’s benefit to the US

Please submit evidence to establish 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. USCIS may evaluate factors including, but not limited
to, the following:

• Whether, in light of the nature of the beneficiary’s
qualifications or proposed endeavor, it would be impractical either for the
beneficiary to secure a job offer or for the petitioner to obtain a labor
certification;
• Whether, even assuming that other qualified U.S. workers are
available, the U.S. would still benefit from the beneficiary’s
contributions;
• Whether the national interest in the beneficiary’s contributions
is sufficiently urgent to warrant forgoing the labor certification process;
• Whether the beneficiary’s endeavor may lead to potential
creation of jobs; and
• Whether the beneficiary is self-employed in a manner that
generally does not adversely affect U.S. workers.

It is obvious from the RFE that evidence presented under the second prong of
the test is crucial to the outcome of the petition. It is our experience
that most NIW petitions are filed based on evidence on the beneficiary’s
education, skills, knowledge and record of success in related or similar
efforts, with particular emphasis on evidence showing the impact of the
beneficiary’s work on the field. As for the balancing test under the third
prong, the applicable factor in most cases is whether even assuming that
other qualified U.S. workers are available, the U.S. would still benefit
from the beneficiary’s contributions.


YZ(原FYZ)律师事务所是向各大教育/研究机构,私营企业及个人提供全方位移民法律
服务的事务所。我们的律师拥有多年美国移民法律服务经验。我们专精美国职业移民申
请和非移民工作签证申请,诸如:EB-1A, EB-1B, EB-1C, NIW, PERM, EB-5, H-1B,
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移民律师事务所之一。
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Email: info@yzlawgroup.com;
Tel: 650-312-8668(SF Bay area); 630-577-9060(Chicago)


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