If you are a dancer and plan to open a dance studio, and you can structure your enterprise where it brings substantial benefit to the national interest, you may qualify for an EB-2 National Interest Waiver (NIW), which can lead to U.S. permanent residency. Recently, the Administrative Appeals Office of U.S. Citizenship and Immigration Services (USCIS) reviewed a caseinvolving a ballet director who filed an EB-2 NIW petition. (1) She planned to operate a dance studio “that [would] “train professionals capable of entering the entertainment industry as theater, dance and musical theater performers, while at the same time fostering sociability, well-being and health through arts education.” (2).
Her appeal was denied but not because her idea did not have merit; it is because she made significant mistakes in drafting her petition. So, this article is to help explain what an EB-2 NIW, how you can use this method to obtain U.S. permanent residency and how can make your case.
What is an EB-2 NIW?
EB-2 NIW is short for “Employment-Based Second Preference National Interest Waiver”. If you are an advanced degree professional or have exceptional ability in the sciences, arts, or business, you may qualify.
Is an EB-2 NIW Popular? Does It Lead to a U.S. Permanent Residency?
The answer to these two questions is “yes”. EB-2 NIW petitions are popular because you do not need to be sponsored by a U.S. employer to apply. Also, you do not to go through the labor certification process, which is a lengthy process demonstrating to the U.S. Department of Labor that there are not enough qualified and willing U.S. workers to fill a position. An approved EB-2 NIW petition can lead to U.S. permanent residency. Since this is a green card option that does not require a U.S. petitioning employer, while many green card options do, it is a very popular option among professionals and individuals with exceptional abilities.
What are the qualifications for an EB-2 NIW?
In addition to being an advanced degree professional or having exceptional ability in the sciences, arts or business, you will have to meet these three criterions:
1. You have a proposed endeavor and this proposed endeavor has both substantial merit and national importance;
2. You are well-positioned to advance your proposed endeavor; and
3. On balance, waiving the job offer requirement would benefit the United States. (3)
This last criterion may not be clear but what it means is that giving the waiver is more important than requiring a labor certification (the process discussed above where you show the U.S. Department of Labor that there are not enough qualified and willing U.S. workers to fill a position); a labor certification is intended to protect U.S. workers from losing jobs or facing lower pay and worse working conditions.
Does establishing a dance studio for performance and wellness have substantial merit?
Yes, it does. To establish “substantial merit” under EB-2 NIW regulations, you can pursue areas such as “culture, health, or education.” (4) Further, if you can explain how your dance studio will promote these goals, this can establish that your dance studio has substantial merit.
What Does USCIS Look for to Determine If an Endeavor Has National Importance?
USCIS is looking for your endeavor’s prospective impact. Certain factors include the following:
· The significant potential to employ U.S. workers (particularly in an economically depressed area);
· Substantial positive economic effects;
· National or even global implications within the field; or
· Other broader implications indicating national importance. (5)
What Can You Do to Show the National Importance of Your Dance Studio
I mentioned earlier that the ballet director made errors when creating her petition. To help you avoid these errors and strengthen your case, you can do the following:
1. Show a Broader Impact
You must show and explain how your work would benefit individuals beyond your own students or program participants in a way that helps public health or major social issues at a national level. If possible, explain how your classes are original or impactful on a national or global scale.
2. Show Significant Financial and Employment Projections Financial and Employment Projections
You need to show that your profits or the number of employees you plan to hire are large for the dance industry or the economy more broadly. In your business plan, it is importance to show that the jobs you will create will be nationally significance.
3. Demonstrating Support to Underserved Communities Is a Plus Factor
It may help to show that your studio has national importance if you can show that you will provide support or be in an underserved area.
4. Obtaining Support from Government Agencies and National Programs Can Strengthen Your Case
If you can obtain documentation that government agencies and national programs support your work, this can help establish that your work is nationally important. Vague and unsubstantiated assertions are not good enough; you need to provide evidence.
5. If You Submit Support Letters, Make Sure They Discuss How You Meet EB-2 NIW Criteria
While having letters of support that praise you personally is great, they are not going to help you win your EB-2 NIW case. Your support letters should discuss your proposed endeavor and how you meet EB-2 NIW criteria. Your letters should avoid discussing work you will perform outside of your proposed endeavor.
6. Working In an Area of National Interest Is Not Enough
Some EB-2 NIW applicants think that working in a field that the government deems important establishes national importance. However, it does not. National importance, for EB-2 NIW standards, focuses on your proposed endeavor. It is a common, yet grave, error to assume that just because your dance studio may help promote important government objectives that it is sufficient to establish national importance. Therefore, you need to focus on your specific endeavor.
Conclusion
Being a dance teacher and opening a studio may be a viable path to U.S. permanent residency. However, it is important to formulate your petition in a way that will stand up to USCIS scrutiny. While this brief article focuses on the first criterion, which involves substantial merit and national importance, it must also be shown that you are well-positioned to advance your proposed endeavor and waiving the job offer requirement would benefit the United States. EB-2 NIW petitions are not straight-forward, they also require a lot of evidence and everyone does not qualify. Therefore, it is highly advisable that you seek competent legal help to ensure that you qualify (so you do not waste time and money) and to help craft an effective petition that gets approved and enables you obtain your dream of U.S. permanent residency by doing something that you love.
This is not legal advice, just legal information. However, if you need advice specific to your case, please send an email to ejedwards@edwardslegalservices.com or send me a message via LinkedIn. I would be happy to connect!
