If you are a professional or a researcher, and you want to achieve a green card without a job offer or labor certification, an EB-2 national interest waiver might be for you. You might believe that your work is quite meritorious and could benefit the USA, but that may not be enough.

United States Citizenship and Immigration Service (USCIS) officers tend to look for particular characteristics of a I-140 national interest waiver petition before they believe that it is approvable. Therefore, it can be beneficial to learn as much as you can about the EB-2 national interest waiver before applying for one. It is also prudent to at least consult with an immigration attorney in your area.

National Merit Defined
The laws regarding employment-based green cards are part of the Immigration and Nationality Act (INA). Additionally, guidance can be found in the USCIS Policy Manual.

Specifically, the EB-2 NIW regulations come from a 2016 court decision called Matter of Dhanasar. That case states that national importance can be based on prospective national, or even global, impact. The Dhanasar decision also says that: “Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance.”

Ways to Show National Merit for an EB-2 NIW
USCIS officers will not likely put much weight on statements that the applicant makes about the national importance of their own work. More objective evidence can be more persuasive.

Find Some News Articles
Locating articles in mainstream publications, such as Newsweek, Forbes, or Time can be one way to show national importance. Many EB-2 NIW beneficiaries like to print out the articles to send to USCIS with the petition letter.

Another idea is to provide links to the articles within the text of the petition letter. As it stated in the Dhanasar case, endeavors that are newsworthy on a regional level may qualify as being nationally important.

Executive and Legislative Branches
Checking websites like whitehouse.gov or congress.gov can be helpful resources for establishing national importance. For example, the White House website has links to presidential proclamations and executive orders.

The Congress website shows bills that are currently being discussed on the House and Senate floors. There are also items from past congressional records, as well.

Letters of Recommendation
Although they may be considered less objective, since most EB-2 NIW applicants ask for the letters, a recommender might include examples of the national importance of an I-140 beneficiary’s work. These might be used to supplement other evidence.

Be sure to have letters of recommendation printed on letterhead. It is also preferable they include the date of signature.

Check with an Immigration Attorney Near You
Although you can self-petition for an EB-2 NIW, it is no easy task. Consulting with someone who drafts this type of petition letter on a regular basis can be extremely helpful.

Bona Fide Enterprise for E-2 Visa Purposes
Even if you come from a qualifying treaty country and have substantial, investable capital, your USCIS E-2 visa application could be denied if it fails to establish that the proposed or existing business is a bona fide enterprise. As such, an E-2 visa applicant should submit supplemental evidence that the enterprise meets E-2 visa criteria.

The USCIS E-2 visa standards require that the enterprise is a real, active, and operating commercial or entrepreneurial venture that produces goods or services for profit. To demonstrate that the investor has the requisite commitment to the enterprise, the E-2 visa applicant might provide USCIS with a detailed description of the activities of the business, as well as financial statements and business reports.

Other examples of evidence that may prove to USCIS that the proposed or existing enterprise qualifies as a bona fide venture include the following:

• Purchase or lease agreements or other real property documentation
• Organizational chart that delineates the enterprise’s hierarchy
• Audited balance sheets and statements of income and expenses
• Quarterly wage reports for employees

What might USCIS consider to be a Marginal Enterprise?
The USCIS requires that an E-2 visa applications be for a bona fide venture in the USA, and not a marginal enterprise. As such, it can be important for you provide them with sufficient documentation to demonstrate that the enterprise is bona fide.

A marginal enterprise, as defined by the USCIS, is one that does not have the current or potential capacity to generate more than enough income for the treaty investor and their E-2 visa dependents. A persuasive E-2 visa application should demonstrate that the treaty investor’s income will be more than sufficient for at least five years from the date of the E-2 visa classification. 

The USCIS could deny an E-2 visa application if it determines that the proposed or existing enterprise is derived from relatively small capital and is intended only to provide a living for the investor and their E-2 dependents. One method of fortifying an E-2 application is by submitting a detailed business plan or executive summary. 

Additional documentation that may convince the USCIS that a treaty investor business is bona fide, rather than marginal, includes following:

• Tax documents evidencing the growth of the business
• Contracts for services and materials involving capital improvements
• Copies of monthly revolving debt payments showing amounts due and paid

An adept E-2 visa attorney may have other strategies for presenting a persuasive application to the USCIS so that the Service finds that an enterprise is bona fide, rather than marginal.