When you petition for an EB-2 NIW you will need to prove to USCIS that a waiver of the job offer and the labor certification requirement is called for. Even if your proposed endeavor has substantial merit and national importance. There are still other elements that you will need to prove to get an EB-2 with a national interest waiver.
Filing an NIW case with USCIS that does not establish all three parts of the regulations, can lead to a Request for Evidence (RFE). That can be frustrating after you have waited those many months of processing time.
What do you need to prove for an EB-2 NIW?
Under the framework in Matter of Dhanasar, USCIS may grant a national interest waiver if the following criteria are met:
(1) The proposed endeavor has both substantial merit and national importance;
(2) The Beneficiary is well positioned to advance the proposed endeavor; and
(3) On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.
What does the third criterion for the NIW mean?
To show that “on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements,” a potential NIW recipient should be prepared to prove the following:
When an employer sponsors you for an EB-2 (EB-2 with PERM), a labor certification is required by USCIS. For an EB-2 NIW, since you are asking that the PERM part of case be waived, you will need to supply some convincing reasons, supported by evidence.
A labor certification concerns the actual minimum requirements for a job opportunity. Demonstrating that you have far more than the minimum criteria may be a compelling argument to show why a PERM is impractical for you. Additionally, if your proposed endeavor is to consult widely in the United States, then being tied to one company would not likely be appropriate. Of course, an entrepreneur who is seeking a national interest waiver would not need a job offer and might hopefully create American jobs.
There are a variety of arguments for why a job offer and labor certification might be impractical for you. The key is that you tell USCIS what they are.