Green Cards for Entrepreneurs: Recent Initiatives and Clarifications for EB-2 NIW Visa Classifications
by Victoria Chen, Esq., J.D.
We at Chen Immigration Law Associates have recently received extensive requests regarding the possibility to obtain a green card under the category of NIW (National Interest Waiver)in EB-2 (Employment Based Second Preference) category. I therefore would like to take the chance to explore the possibility.
NIW has long been regarded as a classification for researchers and scientists whose researches benefit the United States in a national scope. AAO (Administrative Appeal Office) decisions also indicate that when the benefit of the petitioner/beneficiary's work is only limited to the local level, a request for such a waiver is not justified.
However, the USCIS has recently made special clarifications for entrepreneurs who are filing for Eb-2 NIW (National Interest Waiver. A possibility for entrepreneurs to file under NIW is therefore clearer.
The clarifications were inspired by Startup America? a White House-led initiative to reduce barriers to market entry, while accelerating growth for America's job-creating entrepreneurs. These measures highly value entrepreneurs who demonstrate that they can serve the national interest by ensuring that America continues to out-innovate and out-compete other countries in our global economy.
United States Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas recently outlined a series of policy, operational, and outreach efforts of clarification in order to fuel the nation's economy and stimulate investment. The goal of these initiatives and clarifications is to attract the best and brightest entrepreneurs from around the world, who are investing their innovative talents, skills, and ideas in the United States to grow the national economy and create jobs.
What does this mean to an entrepreneur?
EB-2 NIW
Typically, an EB-2 (National Interest Waiver) petition requires a job offer and a certification from the Department of Labor. However, even under existing law, these requirements would be waived if one can demonstrate that the approval of an EB-2 petition would be in the national interest of the United States. Through this light, for example, an individual whose entrepreneurial endeavors would create jobs in the United States would serve the national interest. Yet, the foreign national still must have an advanced degree or have exceptional ability in the arts, sciences, or business.
What is the significance of these clarifications for entrepreneurs?
While these recent announcements are clarifications of current law rather than new reform, these advancements are still very important for entrepreneurs. They serve as an important message to entrepreneurs and immigration officials that the United States Citizenship and Immigration Services (USCIS) will be enhancing training programs and holding policy refresher courses for its officers, so that they will better understand the current programs and policies. This means that entrepreneurs who petition for national interest waivers will be adequately considered, and if an entrepreneur can make a good argument for job creation, they may be especially qualified, as before immigration officers may not have properly considered this argument.
Definition of "National Interest" relating to entrepreneurs
The USCIS has also clarified the three prong criterion for the definition of "National Interest" relating to entrepreneurs and defined by Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT):
1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
It is important for the entrepreneur to focus on the proposed employment rather than past qualifications.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
The entrepreneur may demonstrate that the jobs that the business enterprise will create may also create related jobs in other parts of the nation through efforts of collaboration. In a different example, the entrepreneur may establish that the jobs created locally will have a positive national influence.
3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.
This prong is understood as a comprehensive-based requirement. Overall, through prongs one and two, the entrepreneur should demonstrate that he or she will provide a benefit to the national interest substantially greater than a U.S. entrepreneur, as to justify a national interest waiver. This could be as an international trade lawyer who has specialized knowledge in African trade law, or a consultant who has a special expertise far above that of the ordinary in the United States. Each example would serve as one who substantially benefits the United States' national interest to a greater extent than that of their peers through one's entrepreneurial endeavors.
What should an entrepreneur do now to benefit from the clarifications?
As an entrepreneur, this should be an exciting time for applying for EB-2 NIW. An entrepreneur is now equipped with a potent arsenal of argumentation to include in the petition, and there are essentially three pathways to attack the petition. The first is to demonstrate that an entrepreneur's company is a job creation machine, one that has already created jobs (this includes an entrepreneur's job as owner), and will continue to create jobs for the United States. The second avenue would be to show that your company is contributing to the growth of the United States economy. While there is no generally accepted definition to growth, any argument that includes actual data supporting this notion will be accepted. And while future prospective is valued in the business world, the immigration officers will be more apt to accept arguments where the company has a proven track record of benefit in addition to a prospected one. If you are the owner of a new company, substantial funding can also provide sufficient evidence of economic growth, whether that funding comes from grants or venture-capital firms. This does not necessarily count you out if you cannot show such proven data and benefits, but it should serve as a reminder that each petition is unique.
Finally, the third pathway, while less quantitatively based, can be equally authoritative. Essentially, one can make the argument that the entrepreneur or company will prospectively benefit the cultural, educational, or welfare interests of the United States. This pathway is challenging but nonetheless effective with proper argumentation and documentary evidence. For example, the USCIS provides the example of educational interests being met through the creation of tutoring instruction and learning centers, henceforth fostering the development of educational programs. Moreover, the ultimate goal of any entrepreneur is to prove that they or their company holds a specific expertise advantageously placing them above those in their field. Therefore, a petition from an entrepreneur or company that is armed with all three pathways - proven job creation, proven contributions to national economic growth, and prospective benefits of educational, cultural, or welfare interests - holds an especially powerful argument for a national interest waiver.
Conclusion
Always consult an attorney before deciding the petition route you are going to take. It is crucial to include case law and sound arguments in your petition, and even with these recent developments, immigration officers will still utilize the criterion delegated with respect to the law. Therefore, it is imperative to gather your evidence and make a plan before jumping into an immigration petition.
We Chen Immigration Law Associates is here to help. Contact us today for the possibility of an EB-2 NIW petition as an entrepreneur.