In 2017, a new court decision (Matter of Dhanasar), changed the standard for the National Interest Waiver (NIW) which made this category much more approvable for entrepreneurs.
An NIW is a green card petition that falls under the employment-based second preference (“EB-2”) category. Normally in this category an employer must go through a PERM labor certification process where they undertake a recruiting exercise to show that qualified U.S. workers are not available for the position. This PERM process is time consuming and expensive. For NIW petitions though, an applicant can self-petition and the labor certification requirement is waived. To be eligible for an NIW green card the applicant must hold an advanced degree or equivalent or have exceptional ability.
Under the current NIW standard, the applicant must show that (1) their proposed endeavor has both substantial merit and national importance (now national importance is used which was changed from “national in scope” which was expansive & this prong combines the previous two prongs), (2) they are well positioned to advance the proposed endeavor (this prong looks at the applicant’s education and accomplishments) and (3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification (Significant change and relaxation from the old standard and introduction of more flexibility).
Can I only apply with an established business or can I apply if I have an idea for a start up?
If you have an established business that has created lots of jobs and had a strong economic impact (for example, if you are an E-2 investor who has been running your business for several years), this could be a good basis for a National Interest Waiver case as you could argue the substantial merit and national importance of job creation and economic impact from the business. Additionally, your track record of successfully running the business and hiring employees could help demonstrate that you meet the second prong and are well positioned to advance the endeavor. Additionally, as a majority owner, the labor certification process would not be an option for you, which speaks to the third prong, that it is beneficial to waiver the labor certification requirement.
It is also possible to apply for an NIW if you have an idea for a startup and your business is not fully established yet. In an AAO case on NIW post-Dhanasar, a self-employed entrepreneur for veteran services submitted a business plan for his proposed company, including types of services, fee structures, marketing strategies, operating budget, financial statements, and a list of potential clients.
The AAO approved the case, stating, “Based on his intention to start a consultancy firm through which he will be self-employed, it would be impractical for him to obtain a labor certification. The record demonstrates the immense value in improving programs and assisting organizations that provide support and advocacy for U.S. veterans and wounded warriors. Furthermore, the Petitioner has a past record of success . . . and he has shown that several organizations in the field are eager to make use of his services as a consultant.”
Additionally, in Matter of Dhanasar, the court specifically noted the following: “many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed…in order to merit a national interest waiver, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.” This language supports the fact that entrepreneurs may qualify on the basis of a new business that is still in the startup stage, but also indicates that it is extremely important that the entrepreneur have a high-quality business plan to supplement their own resume, degrees and proof of accomplishments to help demonstrate that they are well positioned to create and operate a successful business.
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