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The Three-Pronged Test Requirement for NIW Entrepreneurs

Hi William:

After I visited your nice designed website, I want to apply for Green Card in the NIW category for entrepreneurs. Could you give more detailed description of the "three-pronged test" requirement for NIW entrepreneurs? 


The normal three-pronged test for NIW candidates requires that the applicant (1) must seek employment in an area that has substantial intrinsic merit; (2) must demonstrate that the proposed benefit will be national in scope; and (3) must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the NIW applicant. 

As stated, no actual job offer or employment offer is required. In the case of an entrepreneur, it is necessary to show that her/his presence in the United States would serve the U.S. national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

1) First Prong for NIW - Substantial Intrinsic Merit: The substantial intrinsic merit requirement is the need to show that the applicant's contributions are concrete, and not just theoretical. The USCIS  instructs entrepreneurs to focus on the proposed employment itself, rather than the entrepreneur's qualifications. That is, it is important to show what the applicant is doing or will do as an entrepreneur. 

2) Second Prong for NIW - Benefit is National in Scope: The benefit derived from the applicant's presence in the United States must be national in scope. Meeting this requirement may be challenging for those entrepreneurs with more locally-based businesses. The USCIS has suggested, however, that entrepreneurs can meet the second prong by demonstrating that the business will create related jobs in the rest of the United States, or that jobs created locally have a positive national impact. 

There is room for thinking creatively with respect to this prong. Many businesses are local, but expand their reach via the internet. Businesses may have customers or suppliers throughout the United States. A product or service provided by an entrepreneur's business may help other businesses or organizations operate more efficiently or profitably. The requirement is that the benefit be national in scope, not that the business operation itself have multiple offices throughout the United States. 

3) Third Prong for NIW - Overcome Labor Certification (LC) Requirement: The third prong requires that the individual seeking the NIW provides a benefit to the United States that is significant enough to outweigh the U.S. interest in making the job available to a citizen (and requiring a PERM LC to establish that U.S. workers are not available). 

The USCIS guidance suggests that the applicant focuses on the job creation aspect of the entrepreneur's business enterprise. That is, establish that she or he is creating jobs for multiple U.S. workers, rather than taking a single job opportunity from one U.S. worker. This aspect of the case requires an understanding of the entrepreneur's history and the details of the business' operations, and may require presenting novel arguments to USCIS in support of the case. 

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