National Interest Waiver (NIW) for Entrepreneurs

The National Interest Waiver (NIW) is a provision made for foreign nationals to obtain permanent residence via an EB-2 employment-based visa without having to go through the Labor Certification process, which usually is a must-have for every available employment-based immigrant visa outside of the EB-1.

However, to qualify for a National Interest Waiver as a foreign national, you must either have exceptional ability or be holding an advanced degree or its equivalent. Furthermore, for you to be considered as having an exceptional ability, you must have a skill set that is quite advanced and above the usual expertise that is hard to come by in areas such as the arts, business, and science. For your advanced degree to be considered appropriate for your occupation, it must have come with 5 years of progressive work experience in your field. The criteria, description and evidence for an NIW do not seem to line up with many entrepreneurs’ situations.

So, how would an entrepreneur be able to prove all the above conditions to be qualified for the NIW? Fortunately, there are provisions that are specific for an entrepreneur who is applying for an NIW. Read on to have a full grasp of how it works for you as an entrepreneur.

National Interest Waiver Background

One of the most prominent conditions attached to many employment visas in the U.S. is that a foreigner seeking to work in the country must be vouched for, and sponsored by, an employer who acts as a petitioner. Also, the employer must obtain a PERM Labor Certification from the United States Department of Labor.

Apart from that, it is a difficult task to engage in anything related to employment without getting an approval/endorsement from an employer under whom you work, or have previously worked. You also need a PERM in order to advance your employment opportunity cause in the country. Simply put, you must  have an employer for an EB-2 green card. Without an employer, you will not be able to obtain a PERM, without which you cannot petition for the EB-2.

So, how can an entrepreneur get an EB-2 without an employer? The answer is, the National Interest Waiver.

With the understanding that entrepreneurs who are in the country just to set up their enterprises without having to work under an employer might be denied the chance of doing so, the USCIS provided the National Interest Waiver. The NIW allows entrepreneurs to bypass the PERM certification entirely. With this provision, you don’t need an employer’s petition or labor certification to start and run your business. However, in place of the labor certification, there are other requirements you must meet to benefit from a NIW.

Benefits of NIW for Entrepreneur

One of the benefits of an NIW for entrepreneurs is that you will bypass the stringent conditions required to file and get a labor certification while still enjoying every advantage attached to the green card category.

Another benefit of the NIW is that you will be both the petitioner and beneficiary when applying for an EB-2 green card. Since you do not have an actual employer to sponsor your petition, the NIW permits you to petition for yourself playing the role of both petitioner and beneficiary at the same time. The Department of Homeland Security will review your petition and waive the requirements for employer sponsorship if he or she is convinced that it is in the national interest to do so.

Requirements for NIW for Entrepreneur

As exciting as the benefits attached to the NIW, some strict requirements are attached to it. These conditions were responsible for the relocation of many entrepreneurs into other countries, since they found it very difficult to satisfy all the requirements. The controversies lasted up until 2016 when the Administrative Appeals Office weighed in on the matter.

New NIW Requirements (Matter of Dhanasar 2016)

If you are up-to-date with the latest news from the USCIS, you will recall “The Matter of Dhansar, Petitioner” in 2016 which paved the way for some adjustments and clarification for the NIW that existed before then. So, for a proper explanation of this, a little dive into the history of the NIW will be necessary in relation to the current NIW, which came after OOA’s decision on the matter.  

Apart from the conditions required for an NIW, there were many ambiguities in the waiver program, which did not only make it very difficult for many self-employed entrepreneurs to benefit from but was also a difficult task for even the USCIS to clearly define at times.

There is a three-prong approach that the USCIS uses to base its assessment of entrepreneurs to determine whether to grant them an NIW or not. They are:

(1) The foreign national’s proposed endeavor has both substantial merit and national importance.

(2) He or she is well positioned to advance the proposed endeavor:

(3) On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

NIW for Entrepreneurs in Light of Matter of Dhansar

Proving the National Importance of Your Entrepreneurship

Before AAO’s decision, it was mandatory for a foreign national entrepreneur to provide proof that the scope of his or her proposed endeavor would both be of national importance and of substantial merit. This, however, made it very difficult for many entrepreneurs to prove that their localized enterprise would have ‘national scope.’

With the Matter of Dhanasar update, an entrepreneur will be just to show that your proposed endeavor “has significant potential to employ U.S. workers and has substantial positive economic impacts” without much emphasis on geographical breadth of the endeavor. With this particular ruling, it becomes easier for you to file all necessary documents to do your business even if it only covers a “state or city scope”, and without being restricted by the ambiguity surrounding the NIW.

As an entrepreneur who is seeking to file for an NIW, you will need to put together a well-detailed business plan revealing how the service you intend to provide through your proposed endeavor is likely to be substantially beneficial to the country. With this, you will meet the USCIS requirements of the first prong by focusing on your proposed endeavor rather than your qualifications.

Proving How Well-Positioned You Are

In its decision, the Administrative Appeals Office recognized that there might be challenges in forecasting the future success of a business. Due to this, it is no longer required for you to prove that your entrepreneurial endeavor is likely to succeed. With this, you only need to show evidence that you are well-positioned to work on and advance your proposed endeavor.

To prove that you are well-positioned, you may present evidence showing other people’s interest in your skills. Recommendations and positive reviews from your clients who have or are willing to patronizing your enterprise will really go a long way in convincing the USCIS that you have what it takes to succeed in your proposed enterprise.

Proving it will be in National Interest to Waive Employment Authorization for You

To prove that your proposed endeavor would be significant enough to get a PERM waiver, you must present evidence to show that the benefits your business has to offer outweigh the significance of enforcing the PERM.

You can further capitalize on the fact that your business has or will have U.S. worker(s) (if any) on its payroll. With this, the country’s workforce will or is benefiting from your endeavor, which goes a long way with the USCIS.

Also try to further convince the USCIS by showing proof of how your past achievements in your area of business can be connected to the proposed endeavor as well as how it will impact its progress.

National Interest Waiver for Entrepreneur Denial

While you might think you have met all the requirements to be granted an NIW, the USCIS may still deny your National Interest Waiver petition. There are many reasons that may lead to a denial such as not filing adequate evidence, filing too much evidence, or not meeting the definition of the USCIS terms for the NIW in the entrepreneur category.

If your NIW application has been denied or you want to avoid being denied, you might need to maximize the power of advocacy and pursue the case to a logical conclusion.