The EB2 National Interest Waiver (NIW) is an attractive immigration option for individuals with advanced degrees or exceptional abilities who wish to contribute to the United States in a way that benefits the nation. However, there has been a noticeable increase in the number of Requests for Evidence (RFEs) issued for EB2/NIW petitions. This trend has raised concerns among applicants and immigration attorneys, prompting a closer examination of the underlying reasons.
Based on our extensive experience with clients who initially submitted their visa petitions independently or with business plans written by the applicants, we've identified several common pitfalls that often lead to RFEs. These issues generally stem from inadequately prepared business plans that fail to address the specific requirements of the EB2/NIW criteria. Below, we discuss the most prevalent reasons for these RFEs and offer insights into how they can be avoided.
1. Excessive Focus on Past Accomplishments and Lack of Detail on Future U.S. Plans
One of the most common issues we encounter is business plans that place too much emphasis on the applicant's past achievements without sufficiently detailing future plans in the United States. While past accomplishments are important, USCIS is particularly interested in how the applicant’s future work will benefit the U.S. economy, healthcare, education, or other sectors.. A well-crafted business plan should clearly outline the proposed endeavor, including specific projects, timelines, and the anticipated impact on a national scale.
2. Inability to Demonstrate Solid National Importance
Another frequent cause of RFEs is the failure to convincingly demonstrate that the proposed endeavor is of substantial national importance. It is not enough to claim that the industry in which the applicant operates is important; the business plan must show how the applicant's specific activities will have a significant and positive impact on the U.S. A strong argument must be made that the proposed endeavor addresses a critical national need or solves a problem of considerable magnitude, making the applicant’s work essential to the country.
3. Lack of Solid Financial Projections
When the proposed endeavor involves future investments, it is crucial to show solid financial backing and realistic projections. USCIS officers often scrutinize whether the applicant has the necessary funds or access to capital to successfully carry out their plans. A common mistake we see in third-party business plans is the lack of clear information about where the investment funds will come from, how they will be used, and what financial returns are expected. To avoid an RFE, the business plan must include detailed financial projections and demonstrate that the endeavor is financially viable and sustainable.
4. Emphasizing Industry Importance Over Specific Endeavor Importance
Applicants frequently make the mistake of highlighting the national importance of their industry rather than focusing on their specific proposed endeavor. For instance, while the healthcare industry is undeniably critical to the nation, USCIS is more interested in how the applicant’s particular work within that industry will address national needs. The business plan should make a compelling case for why the applicant’s contributions are necessary and beneficial on a national level, beyond the general significance of the industry.
5. Misinterpreting What Constitutes National Importance
A significant number of RFEs arise from applicants misunderstanding what qualifies as national importance. Common examples include citing the payment of taxes or the hiring of staff as evidence of national importance. However, these activities are expected of any business and do not, in themselves, demonstrate a national impact. Unless the proposed endeavor involves the creation of a substantial number of jobs or addresses a critical national issue, such arguments are unlikely to satisfy USCIS requirements. It’s essential that the business plan goes beyond generic claims and provides a clear, detailed explanation of how the endeavor will have a national impact.
6. Inadequate Proposed Endeavor
Perhaps one of the most fundamental issues leading to RFEs is the selection of an inadequate proposed endeavor. Choosing a proposed endeavor that is not relevant or does not sufficiently impact the nation is a critical mistake. For example, we frequently turn down clients who approach us with plans to become importers or to open a retail store, expecting these endeavors to qualify under the EB2/NIW criteria. These cases often rely on the same weak arguments of paying taxes and hiring employees, as discussed earlier. However, without a clear and substantial national impact, such endeavors are unlikely to meet USCIS standards. As a result, we do not move forward with cases that lack the necessary merit, and these types of projects are generally rejected.
Conclusion
The increase in RFEs for EB2/NIW petitions highlights the importance of a meticulously prepared business plan that meets the specific requirements of USCIS. Many applicants, after receiving an RFE, seek our assistance in refining their business plans, often after initially using generic or inadequate third-party products. By avoiding the common pitfalls discussed above and ensuring that the business plan is tailored to meet USCIS standards, applicants can significantly improve their chances of a successful outcome.
If you find yourself facing an RFE, it is essential to revisit your business plan with a focus on these critical areas. A well-prepared petition is your best defense against the increasing scrutiny in the EB2/NIW application process. If you need help in doing this, give us a call now.
Additionally, and to help applicants and attorneys determine whether a proposed endeavor is truly viable, we offer an EB2/NIW viability study. This service provides in-depth research and analysis to help you decide whether pursuing a particular endeavor under the EB2/NIW criteria is worth the effort. By leveraging our expertise, you can make an informed decision and avoid the costly and time-consuming process of responding to an RFE for an endeavor that may not meet the necessary standards.
The information provided in this blog is intended solely for informational purposes. While we strive to offer accurate and up-to-date content, it should not be considered legal advice. Immigration laws and regulations are subject to change, and individual circumstances can vary widely. For personalized guidance and legal advice regarding your specific immigration situation, we strongly recommend consulting with a qualified immigration attorney who can provide you with tailored assistance and ensure compliance with current laws and regulations.
Visa Business Plans is led by Marco Scanu, a certified coach from the University of Miami with a globally-based practice coaching Fortune 1000 company executives, entrepreneurs, as well as professionals in four different continents. Mr. Scanu advises clients on turnaround strategies and crisis management.
Mr. Scanu received a bachelor’s degree in Business Administration (Cum Laude) from the University of Florida and an MBA in Management from Bocconi University in Milan, Italy. Mr. Scanu was also a Visiting Scholar at Michigan State University under the prestigious H. Humphrey Fellowship (Fulbright program) with a focus on Entrepreneurship, Venture Capital, and high-growth enterprises.
At present, Mr. Scanu is the managing partner and CEO at Visa Business Plans, a Miami-based boutique consulting firm providing attorneys and investors with business planning services in the areas of U.S. and Canadian immigration, SBA loans, and others.
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