Applying for a National Interest Waiver as an Entrepreneur

Most entrepreneurs and startup founders who have ownership of a business are excluded from the majority of employment-based green card options, including the most commonly used PERM labor certification.  For these individuals, the EB-2 National Interest Waiver (NIW) is a unique pathway to permanent residency in the United States. Unlike most employment-based green card paths, the NIW does not require a job offer from a sponsoring employer. The 2016 Matter of Dhanasar decision reshaped the evaluation criteria for entrepreneur petitions, providing a more flexible framework for assessing NIW eligibility. 

Three-Prong Test: Special considerations for entrepreneurs 

Prong 1: Substantial Merit and National Importance: The proposed endeavor’s merit can be demonstrated in various areas including business or entrepreneurialism. One way to show merit is by submitting evidence that the venture has the potential to create a significant economic impact. Although this prong can still be met without immediate or quantifiable economic impact, it can be a positive factor in establishing that the proposed endeavor has substantial merit. 

Demonstrating national importance can be more challenging. A review of the AAO decisions since Dhanasar shows that most rulings focused on whether the entrepreneurial endeavor was able to demonstrate national importance under the first prong. An entrepreneur has to show that their work has broad implications beyond just making money for their particular business. One way to show this is by demonstrating that the proposed endeavor has the potential to employ U.S. workers or provide other positive economic benefits, especially if the business will operate in an economically depressed area. Clearly articulate how the business aligns with the U.S. national interest such as the STEM sector, Critical and Emerging Technologies (CET) advancement, the potential to create jobs, or other positive factors. 

Prong 2: Well positioned to advance the proposed endeavor: An individual may be well-positioned to advance the field even without demonstrating that their business is likely to ultimately succeed. Submitting evidence of past business achievements and how it supports plans for ongoing or future work may help establish the second prong. In addition, USCIS will take into account the following factors when evaluating this prong:

• An individual’s education, skills, and knowledge
• An individual’s record of success in related work
• A model or plan for future activities 
• Any progress towards achieving the proposed endeavor
• An interest of potential stakeholders such as customers, users, investors, or other relevant entities or individuals 

Prong 3: Waiver of the job offer and labor certification requirement: The AAO acknowledged in Dhanasar that the third prong under the previous NYSDOT framework was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals. Under the new framework, relevant considerations for entrepreneurs includes: 

• The impracticality of a labor certification application.
• The benefit to the U.S. from the person’s contributions, even if other U.S. workers were also available.
• Whether the person’s endeavor has the potential to generate considerable revenue.
• Whether the person’s endeavor may lead to potential job creation.

Documents to include as an entrepreneur 

The following unique types of evidence may be submitted to meet the three prongs as a business owner:

• Evidence of company ownership 
• Information about their role in the U.S.-based entity
• Degrees, certifications, licenses, and letters of experience
• Investments in the entity, including binding commitment to invest or future intent to invest 
• Incubator or Accelerator participation
• Awards or grants, especially from U.S. government sources
• Intellectual property or patents
• Published materials about the applicant or their U.S.-based entity
• Revenue generation, growth in revenue, and proof of job creation
• Letters and other statements from third parties regarding the business

Many entrepreneurs do not follow traditional career paths and there is no single way in which an entrepreneurial startup must be structured. The EB-2 NIW offers flexibility to establish eligibility for an employment-based green card as a self-petitioner entrepreneur.