Matter of Dhanasar recognized the possibility that the national interest waiver (NIW) could be an appropriate green card pathway for entrepreneurs, noting, entrepreneurs or self-employed persons may not readily avail themselves of the traditional employer-sponsored green card option, and that the work of entrepreneurs could provide countervailing benefits that outweigh the ordinary benefits of the labor certification process to protect the domestic labor supply.
Does this mean all entrepreneurs and self-employed individuals would automatically qualify for a green card through the NIW? The answer is No. The applicant must still meet the threshold qualification for the EB-2 category and meet Matter of Dhanasar’s three-prong test to demonstrate they merit a green card under the NIW, which is that the applicant’s work must have substantial merit and national importance, the applicant is well positioned to advance the endeavor, and on balance, it would benefit the United States to exempt the applicant from the labor certification requirement.
Matter of Dhanasar also noted that an endeavor that has “significant potential to employ U.S. workers or has other substantial economic effects, particularly in an economically depressed area. . . may well be understood to have national importance.”
What does “significant” job creation mean here, and what does “substantial economic effects” mean in practice to support a finding of national importance for an entrepreneur? Is there a minimum number of jobs created and revenues generated by an entrepreneur’s business that would guarantee approval of an entrepreneur’s application for a green card under the NIW?
The answer is No, there is no minimum number of U.S. job creation or revenue generation in the regulations or case law that the government defines as “substantial” at a level to satisfy national importance. We have seen NIW approvals for entrepreneurs with less than a dozen employees, while several AAO cases have affirmed NIW denials for entrepreneurs whose proposed endeavor had involved hiring over 100 employees.
Given this, an entrepreneur may benefit from developing an additional “hook” as to why their work is of national importance, instead of relying solely on job creation and revenue generation as a foundation for their case. For example, entrepreneurs who propose to develop and disseminate an innovative technology, approach, or product, which will introduce advances to their field or industry more broadly, would give USCIS an additional basis on which to find national importance, independently of the number of jobs created and the volume of revenues generated through their business.
Check out our related posts below that explore the various strategies of how entrepreneurs can build a persuasive NIW case.
How much economic contribution is substantial enough?
NIW Strategy for Entrepreneurs – substantial merit and national importance
What do you need for a winning NIW petition for avionics engineer and entrepreneur?
NIW for entrepreneurs and startup founder: can you qualify, and what are the challenges?
