NIW for Entrepreneurs – How much economic contribution is “substantial” enough for national importance?

2016’s landmark Matter of Dhanasar decision opened the pathway for entrepreneurs to self-petition for U.S. permanent residence through the EB2, National Interest Waiver (NIW) category. The case law noted that a business endeavor with “significant potential to employ U.S. workers or [that] has other substantial positive economic effects, particularly in an economically depressed area,” may well be understood to have national importance.

Unfortunately, there is no explicit guideline on exactly how much job creation is considered “significant” or how much economic production is considered a “substantial positive” effect to rise to the level of “national importance.”

Published appeals decisions by the Administrative Appeals Office (AAO) can provide some clues to what may or may not meet these standards.

One AAO case in September 2021 discussed an NIW petition by a restaurant owner, who had many years of experience opening and leading successful restaurants in Brazil, who proposed to open a restaurant in the U.S. specializing in his famous Brazilian barbecue menus and later expand to multiple locations, creating direct and indirect jobs in the U.S. in that process. He had obtained expressions of interest from potential investors, one of which pledged $150,000 in the endeavor. His business plan projected profit margins of $35,000 -$80,000 per month, but did not specify a number of workers he was planning to hire.

Although the USCIS determined this project had “substantial merit,” it did not rise to the level of “national importance.” The court noted that no supporting evidence was submitted to corroborate the applicant’s business profit projections and specifying how the $35,000 – $80,000 monthly profit margin would constitute “substantial economic benefits” to the region or to the nation. The applicant may have had a better chance if he submitted additional evidence quantifying and specifying the direct and indirect job creation and revenue generation numbers, and presented a more persuasive narrative of how his business would spur substantial business activity in the region.

A different AAO case in June 2022 discussed an NIW petition by an educator and entrepreneur who proposed to operate an English-as-a-Second Language facility and coordinate educational services with various institutions. The applicant projected they would hire 14 employees by Year 5, which would generate 29 indirect jobs in addition. Projected payroll at Year 5 was $760,000. The AAO found that the proposed endeavor would benefit the business’s partners and its students, but these benefits would not rise to a “national” level.

Here, unfortunately the government was not convinced that these job-creation effects would have “substantial positive economic effects.” They may have found differently if the applicant specified the workers’ workplaces and whether they were in an “economically depressed area,” but in this case no evidence to this was provided.

These pattern of cases suggest that direct job creation in the low-dozens, even with the addition of indirect job-creation effects, without more may not suffice to persuade the government that an entrepreneurial endeavor is of “national importance.”

To maximize an entrepreneur’s chances on securing an approval under the National Interest Waiver category, a variety of strategies can be used to overcome lower job creation projections by pursuing different kinds of arguments and evidence to establish national importance, for instance by focusing on how the business offers to develop and disseminate innovations that can spark progress in the industry as a whole.

Attorneys at Scott Legal have deep experience crafting tailored arguments to persuade USCIS of the national importance of an entrepreneurial endeavor. Increase your chances of approval by retaining Scott Legal’s expert counsel who can accurately assess the strengths of your case and recommend the best way forward.