News

Published January 25, 2022

On January 21, 2022, the Biden Administration announced an expansion of the National Interest Waiver path to permanent residence (green card) for certain foreign entrepreneurs.  The new policy aims to clarify how the National Interest Waiver process can be used by entrepreneurs who meet certain criteria.

What is the National Interest Waiver?

Immigrants seeking to obtain permanent residence (green card) to the U.S. through employment must generally have a job offer from a U.S. employer.  In addition, the U.S. company first has to advertise the job through very specific outlets to try and find U.S. workers who meet the minimum qualifications, before it can sponsor the foreign employee.  This is generally known as the PERM process.  Through PERM, the employer starts the process with the U.S. Department of Labor (DOL) to prove it could not find a U.S. worker who meets the minimum qualifications for the position.  If DOL certifies the employer’s Foreign Labor Certification application, then the employer can petition the U.S. Citizenship and Immigration Services (USCIS) for the applicable immigrant classification for the foreign employee.

The National Interest Waiver (NIW) process gives some foreign entrepreneurs the ability to petition for permanent residence on their own, without needing a job offer or company sponsorship.  The immigrant basically asks the government to waive the requirement for a job offer, company sponsorship, and job advertising because granting them permanent residence would be in the national interest of the U.S.  Hence the term National Interest Waiver.  In the NIW process, the employee skips the Department of Labor process entirely and petitions directly with USCIS instead.  Moreover, the employee (foreign national) can submit their own petition with USCIS, without needing an employer to do so on their behalf.

What are the eligibility criteria for the NIW?

The current legal framework for the National Interest Waiver was established through the precedent decision of Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).  We previously discussed the eligibility criteria under Matter of Dhanasar after it was initially implemented and we invite you to read that analysis here.   

In short, under a NIW petition, a foreign national must show that they have a graduate degree or exceptional ability, and that their proposed endeavor meets all of the following three criteria:

1. the proposed endeavor has both substantial merit and national importance;
2. the immigrant is well positioned to advance the endeavor; and
3. on balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements.

Is Matter of Dhanasar applicable to entrepreneurs or start-up founders?

Yes.  The Dhanasar decision from 2016 opened the door to entrepreneurship as a possible eligibility ground for NIW.  In that decision, the Administrative Appeals Office (AAO) that decided that case noted that it would be suitable to seek a National Interest Waiver in cases where a self-employed inventor or entrepreneur would find it impractical to secure a job offer while advancing his or her own invention or business, without losing the proprietary rights to the invention or business.  

However, the Dhanasar case was not really about entrepreneurs (Dr. Dhanasar was an aerospace engineer whose proposed endeavor was aerospace research, not a start-up entity). The self-employed inventor or entrepreneur comment in Matter of Dhanasar was just a side note that it is possible to get NIW as an entrepreneur, not a guide as to how an entrepreneur would qualify for it.  Therefore, without additional formal guidance from USCIS about how to implement Dhanasar in the context of entrepreneurship, USCIS officers across the country have reached inconsistent conclusions as to what type of evidence an entrepreneur must actually provide in order to qualify for NIW.

Does the January 2022 policy change or eliminate the Dhanasar requirements?

No. The January 2022 policy update from the Biden administration does not change the standard or the three criteria required by Matter of Dhanasar.  Instead, the new policy specifically addresses how a foreign entrepreneur can use the NIW process, and what type of evidence can be used.

What type of evidence can an entrepreneur use to qualify for a National Interest Waiver?

The January 2022 policy guidance acknowledges that the entrepreneurship field provides unique circumstances that are inapplicable in other areas.  While entrepreneurs can submit the type of evidence traditional to other NIW cases (such as patents, letters from experts in the person’s field, scholarly publications and citations, etc.), the new policy recognizes several additional types of evidence that USCIS can consider when analyzing a NIW petition filed by an entrepreneur.

For instance, the entrepreneur’s ownership interest and/or active and central role as an officer in the U.S. company may go toward proving that the entrepreneur is well positioned to advance the endeavor (2^nd prong of Dhanasar).  The fact that the entrepreneur has received investments or binding commitments to invest from angel investors or venture capital firms may go toward both the substantial merit of the endeavor (1^st prong in Dhanasar), and the entrepreneur being well positioned to advance the endeavor (2^nd prong).

Notably, the January 2022 policy guidance specifically recognizes incubator and accelerator participation as an endorsement of the substantial merit of the foreign entrepreneur’s proposed endeavor and the entrepreneur’s own qualifications.  Awards and grants from federal, state, or local government entities with expertise in economic development, R&D, or job creation, are also valuable in showing all three prongs of Dhanasar.  Last but not least, the January 2022 policy guidance instructs USCIS officers to consider growth metrics for the start-up entity as related to revenue generation, job creation in the U.S., and the entrepreneur’s contribution to both.

Showing that the immigrant has a graduate degree in a STEM field is a plus.  In fact, the same January 2022 policy carves out a separate NIW eligibility for holders of advanced degrees in STEM fields, which we are discussing in detail here. However, having a STEM master’s or Ph.D. is not sufficient by itself. 

There is no magic number or combination of items one can submit to ensure approval under the NIW framework.  Each case has its own facts and will generate its own evidence.  Therefore, it is crucial to have all facts and qualifications carefully analyzed, and all evidence tailored to each specific case, before submitting a NIW petition. 

 Are there any other options for entrepreneurs to get permanent residence?

The options are very limited, and there is no clear start-up visa on the books under U.S. law.

The PERM process mentioned at the beginning of this article is generally not suitable for start-up companies or entrepreneurs for several reasons.  First of all, the foreign entrepreneur is often one of the company’s founders or investors.  For PERM, the job has to be open and available to U.S. workers, and that is not generally the case when the position is that of the company’s own founder.  In addition, PERM cases require the employer to pay the prevailing wage for the position, which most start-up companies cannot afford in the first few years of existence.  

The current U.S. immigration law does not offer any straight forward visa options for founders of start-up companies. The most common types of investment-based immigration options currently on the books are very limited. One option, EB-5, requires an investment amount that is often unattainable by a start-up founder ($500,000 or $1,000,000 coming from the investor’s personal funds, not from outside investors; amount depends on the location of the enterprise).  Another, E-1/E-2 treaty visa, does not have a minimum investment amount like the EB-5 program, but it is limited only to nationals of certain countries who have a particular type of international treaty with the U.S.  The E-1/E-2 option is also a temporary non-immigrant visa and does not provide a direct path to permanent residence.

Another more recent option, the International Entrepreneur Parole (IEP) rule, likewise provides only temporary status for 2 ½ years, renewable once for the same period, for a maximum aggregate of 5 years.  The IEP also does not provide a direct path to permanent residence.  The IEP program also requires substantial ownership interest in the start-up, and investment of over $264,000 from specific types of investors, among other requirements (the investment amount requirement was $250,000 when the program was initially announced, but it is adjusted for inflation every year).  While the IEP program provides a lesser investment amount and is available to those for whom the E-1/E-2 treaty visa is not available (particularly nationals from India and China), the IEP is still more rigid than the NIW and is also capped at 5 years, with no direct path to permanent residence.

We will continue to monitor the implementation of the NIW policy.  If you wish to discuss this, or any other immigration-related matter in more detail, do not hesitate to contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or 608-252-9291.