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EB2 National Interest Waiver Application for Foreign Entrepreneurs

1. EB2 Immigrant Visa for Foreign Entrepreneur

Since the Department of Labor's regulations do not allow the issuance of labor certifications in self-employment situations, a foreign entrepreneur without a job offer from a U.S. employer will generally be unable to file an EB-2 visa petition, unless the foreign entrepreneur qualifies for a National Interest Waiver (NIW) exempting the entrepreneur from the job offer requirement, and thus the labor certification waiver.

For EB-2 classification and exemption from the job offer and labor certification requirements, a foreign entrepreneur can self-petition the EB-2 National Interest Waiver. Many foreign entrepreneurs filing under the EB-2 visa category are based on EB2 National Interest Waiver category, and they should meet the requirements of NIW petition. Therefore, a foreign entrepreneur must first demonstrate that he or she is either a member of the professions holding an advanced degree or an individual of exceptional ability.

A foreign entrepreneur may file an immigrant visa as a professional holding an advanced degree, or may file as an individual of exceptional ability in the sciences, arts, or business. The foreign entrepreneur who satisfy either criterion may be able to eliminate the need for an employer-sponsored PERM labor certification, if they can qualify for the EB2 under the National Interest Waiver (NIW) category.

2. USCIS Acknowledges Access to National Interest Waiver Petitions for Foreign Entrepreneurs

The United States Citizenship and Immigration Services (USCIS) has announced its efforts to increase the foreign entrepreneurs in U.S., to boost the economy and alleviate the unemployment rate in the United States. One of the USCIS' efforts is to make the National Interest Waiver (NIW) program under the employment-based second preference (EB2) category available for the foreign entrepreneurs.

The USCIS has provided several ways for foreign entrepreneurs to obtain the U.S. permanent resident status. One of the important methods is the EB2 National Interest Waiver petition for foreign entrepreneurs, in which the alien beneficiary should have an advanced degree or have exceptional abilities.

Immigrant entrepreneurs are some of the United States' most successful job creators. USCIS has announced a series of initiatives to grow the economy and create jobs in the United States. It will use the current immigration system to attract and retain immigrants to startup enterprises and create jobs in U.S.

  • A National Interest Waiver (NIW) exempts the alien beneficiary from the ordinary requirement of a job offer, and thus from receiving a labor certification from the U.S. Department of Labor. An alien entrepreneurs can obtain a waiver of the job offer requirement and therefore the labor certification, if it is in the U.S. national interest, and can meet the qualification requirements.
  • If an alien entrepreneur wants to file an EB2 National Interest Waiver petition, the alien entrepreneur must demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.
  • If an alien entrepreneur wants to file for an EB2 National Interest Waiver petition, the alien entrepreneur does not need to have an actual employer in the United States. If the alien entrepreneur qualifies for EB2 National Interest Waiver, he or she does not need to have an actual job offer from a U.S. employer. Therefore, an alien entrepreneur is able to self-file EB2 NIW petition for him or herself, with the role of both the petitioner and beneficiary. If the alien applicant's services are in the sciences, arts, professions, or business, and are in the U.S. national interest, the job offer is waived.

3. The EB2 National Interest Waiver Classification Requirements

The EB-2 classification is divided into two sub-categories: professionals with advanced degrees and individuals with exceptional ability in the sciences, arts or business. Although a job offer from an employer and a labor certification from the Department of Labor are generally required for the EB-2 classification, you may be eligible to self-petition if you are asking for a waiver of the labor certification requirement based on the national interest (EB2 National Interest Waiver).

1) EB-2 Advanced Degree Professional: You are a professional holding a U.S. master’s degree or higher or foreign equivalent degree that relates to the field you will be working in; or you have a U.S. Bachelor’s degree or foreign equivalent degree and at least 5 years of progressively responsible experience in your field after receiving your Bachelor’s degree.

2) EB-2 Exceptional Ability: You may be eligible for this category if you have exceptional ability in the sciences, arts, or business. Exceptional ability means that you have a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.

USCIS has identified the exceptional ability in the sciences, arts, or business, as a basis for EB2 immigrant visa qualification by an foreign entrepreneur. A foreign entrepreneur can use the EB2 immigrant visa category as a person of exceptional ability if: 

1) the entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur's behalf; 

2) the entrepreneur will be working in the sciences, arts, or business; 

3) the entrepreneur has exceptional ability in the sciences, arts, or business; 

4) the entrepreneur will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States; 

5) the petitioning employer has received a labor certification from the DOL; and 

6) the entrepreneur meets or exceeds all the job requirements listed on the labor certification.

4. How Can an Entrepreneur Establishes the Exceptional Ability or Holding an Advanced Degree

As a Profession With Exceptional Ability

The law defines exceptional ability as "degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." For a foreign entrepreneur to establish that he or she has exceptional ability in the sciences, arts, or business, the entrepreneur would need to establish that he or she could meet at least three of the six criteria: 

1) An official academic record showing that the beneficiary has a degree, diploma, or certificate from a college, university, or school relating to the area of exceptional ability;

2) Evidence in the form of letters from current or former employers showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;

3) A license to practice the profession or certification for a particular profession or occupation

4) Evidence that the beneficiary has commanded a salary, or other remuneration for services, which demonstrates exceptional ability

5) Evidence of membership in professional associations; or

6) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

The regulation requires that the the entrepreneur have a degree “relating to” the area of exceptional ability, which means that the entrepreneur’s degree need not be in the same field of claimed exceptional ability, but only that it be related to that field.

As an example, an entrepreneur seeking to start an internet-related business and who claims exceptional ability in that field might qualify with a degree in computer science, network technology, or certain areas of business. Also, the entrepreneur must demonstrate that he or she has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

As a Profession Holding an Advanced Degree

A foreign entrepreneur can qualify the EB2 immigrant visa category as a member of a profession holding an advanced degree, if the:

1) entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf;

2) entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree;

3) underlying position requires, at a minimum, a professional holding an advanced degree or the equivalent;

4) petitioning employer has received an individual labor certification from the Department of Labor; and

5) entrepreneur meets all the specific job requirements listed on the individual labor certification, or will file EB2 National Interest Waiver Petitions for the foreign entrepreneurs.

Since an labor certification is also required for this category, the "ownership" difficult in the Labor Certification process still exists for foreign entrepreneurs or owners of businesses holding advanced-degree. Therefore, same as with the advanced-degree option, the alien entrepreneurs interested in owning and running their own businesses may also apply for EB2 National Interest Waiver (NIW), to waive the requirement of the PERM Labor Certification.

5. The Requirements of EB2 National Interest Waiver Applicants as Entrepreneurs

The term “national interest” is not defined in the USCIS regulations, and U.S. Congress did not specifically define the term “national interest” also. But USCIS has issued a precedent decision, Matter of New York State Department of Transportation (NYSDOT), concerning "national interest" and the EB2 National Interest Waiver petition.

USCIS' precedent decision for NYSDOT case lays out a three-prong test for EB2 NIW applicants to qualify for a waiver of the job offer requirement. While NYSDOT case and its USCIS decision do not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the EB2 National Interest Waiver under some circumstances. For example, the NYSDOT decision states:

"The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…The petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field."

The alien entrepreneur must establish substantial prospective benefit to the U.S.

1) Proposed impact of your work is national in scope: For applicants as entrepreneurs, USCIS will consider the entrepreneurs who establish that their entrepreneurial enterprise will serve the U.S. national interest to a substantially greater degree than the work of others in the same field. 

2) Create jobs for U.S. workers: For entrepreneurs to qualify for an NIW petition, you should demonstrate that your business will create jobs for U.S. workers, or enhance the welfare of the United States. Also, you still need to show that the creation of jobs for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

The EB2 immigrant visa category for aliens with exceptional ability requires the foreign entrepreneur to establish the substantially benefit the U.S. national economy, cultural interests, educational interests, or welfare prospectively.

The alien entrepreneur could demonstrate that the U.S. welfare would be substantially improved with the entrepreneur's business located in the United States. The USCIS has shown several examples of substantial benefit to the United States for foreign entrepreneur, such as the opening of tutoring centers as a benefit to U.S. educational interests. 

It may be difficulty to show the "substantial nature of the benefit" for small businesses. Therefore, to demonstrate the substantial prospective benefit for a particular entrepreneur, it is necessary to include the business interests, the history of business ventures, the products of the business, services of the business, the expenditures, the investments, the growth potential, the sustainability, and other relevant factors.

The alien entrepreneurs should discuss which elements - national economy, cultural or educational interest, or welfare of the United States, the entrepreneurial enterprise is claimed to benefit:

  • Example one: the educational interests of the United States may be met by an entrepreneurial enterprise that establishes tutoring instruction learning centers throughout the United States;
  • Example two: the entrepreneur could demonstrate that at least one aspect of the welfare of the United States will be “substantially” better off were the entrepreneurial enterprise to be located in the United States. It should be noted that the term “welfare” as used by the statute is a broad concept, and could refer to any number of areas. 

6. The Three-Prong Test for EB2 National Interest Waiver Applicants as Entrepreneurs

The USCIS has determined that the EB2 National Interest Waiver (NIW) is an option for entrepreneurs' Green Card application, because it does not require a PERM Labor Certification, or a specific job offer. Thus, it eliminates the "ownership" difficult in the Labor Certification process, and it could be a viable option for a successful entrepreneur..

The EB2 National Interest Waiver category has its own challenges for foreign entrepreneurs, and NIW's Three-Prong test requirement is also applied for the foreign entrepreneurs:

1) must seek employment in an area that has substantial intrinsic merit; 

2) must demonstrate that the proposed benefit will be national in scope; and

3) 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 NIW applicant.

For an alien entrepreneur, even no actual job offer or employment offer is required, it is necessary to show that the alien's presence in U.S. would serve the U.S. national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

USCIS' announcement has provided an avenue to U.S. permanent residence via entrepreneurship. But it is important to understand the potential hurdles that may limit the eligibility for alien entrepreneurs to apply for EB2 National Interest Waiver.

1) First Prong for NIW: Substantial Intrinsic Merit

For the substantial intrinsic merit requirement, the alien applicant should show that the proposed employment is in a field with "substantial intrinsic merit." For this requirement, the alien entrepreneurs should focus on the proposed employment itself. Thus, it is important to show what the applicant will do as an entrepreneur in a field with substantial merit.

Under the first prong of the NYSDOT test, the alien entrepreneur 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 the entrepreneur’s qualifications. In the NYSDOT case, the beneficiary was a structural engineer working on highway bridges inside New York State. This activity was found to have substantial intrinsic merit. 

2) Second Prong for NIW: Benefit is National in Scope

This prong requires that the benefit derived from the alien entrepreneur's presence in the United States must be national in scope. This requirement could be a challenge for some people with local business. But the alien entrepreneurs could meet the requirement by demonstrating that the business will create related jobs other locations of the United States, or that the jobs created locally have a positive national impact.

This prong requires that the alien's benefit should be national in scope, not requires its business operation should have multiple offices throughout the U.S. Therefore, many alien entrepreneurs could meet the requirements with the reach through the Internet, having customers or suppliers throughout the U.S., or helping other businesses or organizations in the United States operate more efficiently or profitably.

The second prong of the NYSDOT test requires that the entrepreneur demonstrate that the proposed benefit will be national in scope. For example:

1) the entrepreneur may demonstrate that the jobs that the alien's business enterprise will create could also be created in other parts of the nation.

2) the entrepreneur might be able to establish that the jobs created locally will have a positive national impact. As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

3) Third Prong for NIW: Overcome LC Requirement

The third prong requires that the alien applicant seeking the EB2 National Interest Waiver should provide a benefit to the U.S. that is significant enough to outweigh the national interest in the PERM Labor Certification. To meet this requirement, the alien entrepreneurs can focuses on the job creation aspect of the entrepreneur's business enterprise. That is to create more job available to U.S. citizens, rather than take job opportunities from U.S. workers. The submitted evidence includes the entrepreneur's history and the detailed business' operations.

The NYSDOT’s third prong considers the labor certification process' benefit to the United States. An alien applicant seeking a waiver of labor certification process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. 

Therefore, this requires that the alien entrepreneur to present a significant benefit to the field of endeavor, and the entrepreneur must document how the entrepreneurial enterprise will benefit that field, as stated in the NYSDOT case:

“In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”

Therefore, the entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an EB2 National Interest Waiver. 

For example, the entrepreneur may create new job opportunities for U.S. workers - the job creation for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

7. The Labor Certification Difficult for Owners of Businesses, and the Related Issues for EB2 National Interest Waiver Applicants as Entrepreneurs

In the EB2 immigrant visa category, one of the the Labor Certification's requirements is that the alien employee should not have the ownership of the employer, such as corporation, partnership, or sole proprietorship, as indicated in a question asked in the PERM Labor certifications application Form 9089:

"Is the employer a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, stockholders, partners, corporate officers, incorporators, and the alien?"

If the answer to above question is 'Yes' in the PERM Labor certifications application Form 9089, the employer will have to prove that the hiring of the alien was an independent decision. If the alien beneficiary is a company founder or has ownership interest in the sponsored employer or family members, the DOL may audit the PERM Labor Certifications application, or may deny the PERM Labor Certification.

Therefore, to avoid the Labor certification, a foreign entrepreneur holding an advanced degree or the equivalent can apply for EB2 National Interest Waiver (NIW) which eliminates the need for the PERM Labor Certification process and above ownership issue.

The USCIS' announcement for foreign entrepreneurs' immigrant visa application does not create a new law, it simply relates to interpretation and opportunities within existing immigration regulations that can benefit the foreign entrepreneurs and startup companies, and therefore benefiting the United States as a whole.

1) Hurdles for Some Entrepreneurs: The USCIS' announcement to encourage foreign entrepreneurs to create startup companies in United States has created options for some foreign entrepreneurs who would not otherwise qualify for immigration categories that are available solely to entrepreneurs, such as EB5 - Investor Permanent Resident, or called "Investor Green Card," which requires the investment levels and amount beyond the affordable means of many foreign entrepreneurs. 

USCIS' announcements establish the availability for foreign entrepreneurs to receive the H-1B professional worker visas, and also file the immigrant visa application, or Green Card application, in the category of employment-based, second preference, specifically in the EB2 National Interest Waiver category.

2) Potential Unauthorized Employment with Entrepreneurs: For some alien individuals, they should consider to avoid the unauthorized employment in U.S., while establishing their own companies or businesses. Some foreign entrepreneurs may be limited to working for a specific employer with nonimmigrant visa, such as H-1B or L-1 visa, or may explore entrepreneurial options without authorization to work in United States.

3) Overview of Potential Options for Entrepreneurs: It is nor clear whether the USCIS' announcements will have a significant impact on the foreign entrepreneurs' immigrant visa petitions and their EB2 NIW petitions. Since there is no actual change in the immigration law, and no creation of a new immigration category for foreign entrepreneurs or small business owners, many foreign entrepreneurs should be cautiously optimistic, and may face immigration challenges for their immigrant visa petitions and EB2 National Interest Waiver Petitions.

8. Strategies for Entrepreneurs to Apply for EB2 National Interest Waiver Petition

For EB2 National Interest Waiver petition, the alien entrepreneurs can prove their benefits to the U.S. national interest via:

1) the products/services they provide and revolutionize; and 

2) the substantial impact to the national economy through job creation and investment stimuli. 

Example: One of USCIS approvals for EB2 National Interest Waiver is for an foreign entrepreneur who established an engineering service. It provides specialized services in fiber optics and high-speed digital signal processing applications. The service has its intellectual property cores in vital and emerging area of national and international economies. Before filing the immigrant visa application under the EB2 National Interest Waiver category, the company had created more than 10 jobs in U.S. through a partnership with other companies. This EB2 NIW petition received approval after responding to an Request For Evidence (RFE) notice for record of sales.

USCIS values objective evidence, and it consistently held that the alien applicant's past influence in the field and corroborating evidence are critical to EN2 NIW petition approval, such as:

1) for entrepreneurs: gross revenues and job creation statistics;

2) for artists and musicians: record sales and magazine features;

3) for researchers: publications and citations.

The USCIS adjudicators will review the totality of submitted evidence, and determine whether the overall pattern of evidence justifies petition approval.

If the standards for exceptional ability do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.

Comparable evidence can be submitted in support of the criteria listed for exceptional ability. USCIS will consider the totality of the circumstances when reviewing the evidence provided for eligibility of the EB-2 visa classification. When comparable evidence is presented, the alien entrepreneur should explain how and why the regulatory criterion for which comparable evidence is being submitted does not readily apply to his or her occupation. 

There is no limit on the type of comparable evidence the alien entrepreneur may submit. USCIS will focus on the quality of the evidence, and how it compares to the regulatory criterion for EB-2 visa classification. As an example, the alien entrepreneur may demonstrate:

1) past achievements in obtaining venture capital funding from reputable sources;

2) past participation in incubators that have high evaluative standards for participation - entities that provide resources, support, and assistance to entrepreneurs to foster the development and growth of an idea or enterprise.

9. How to Present Supporting Documents for Foreign Entrepreneurs to File EB2 National Interest Waiver (EB2 NIW) Petitions

For foreign entrepreneurs to file EB2 National Interest Waiver (EB2 NIW) petitions, the petition should focus on how to prove the past achievements and entrepreneur activities in the United States, and have provides jobs for U.S. citizens. 

Thus, the alien applicant should have a successful track record as a entrepreneur for the EB2 National Interest Waiver eligibility. The EB2 National Interest Waiver petition for a foreign entrepreneur should not only focus on the "potential" U.S. national interests in future. 

The EB2 NIW petitioner for a foreign entrepreneur can have a variety of ways to prove a particular business achievement, including:

  • evidence of the success of foreign enterprises;

  • developed business plan and can prove that the company has reached the set goals;

  • the current number of employees;

  • business contract or transaction;

  • media attention for the business;

  • detailed business plan in the United States.

10. The Reviewed H-1B Policies, and H-1B Specialty Occupation 

Based on internal and external feedbacks, and also based on the operational considerations between the H-1B visa requirements and startup enterprises, USCIS has evaluated the challenges and limitations faced by foreign entrepreneurs to get H-1B visas, for them to work for their own companies or other startup companies.

As a foreign entrepreneur, currently you may be eligible for an H-1B visa if you are planning to work for the business you start in the United States in an occupation that normally requires a bachelor’s degree or higher in a related field of study, such as engineers, scientists or mathematicians, and you have at least a bachelor’s degree or equivalent in a field related to the position.

With a H-1B visa, the initial period of stay in U.S. is up to 3 years, and the H-1B visa extension is possible in up to 3 year increments. The maximum period of stay is generally 6 years, and extensions beyond 6 years may be possible for some cases.

11. The USCIS' Revised Request for Evidence (RFE) Templates for EB2 National Interest Waiver

To help its officers better communicate with foreign entrepreneurs and startup companies, the USCIS has explored alternative forms of evidence that the USCIS has not traditionally asked for before, and that an entrepreneur or startup company may be more able to provide to meet the eligibility criteria for the EB2 National Interest Waiver immigrant visa classification. 

USCIS has revised specific Request for Evidence (RFE) templates to make them more user friendly and reflective of current business trends. As an example, while a Request for Evidence notice typically asked for documents like stock certificates, articles of incorporation, and bylaws, the a Request for Evidence notice may now include requests for documents such as stock purchase agreements, capitalization tables, and term sheets, which may be useful documents for USCIS adjudicators to review when determining eligibility for certain EB2 NIW petitions filed by foreign entrepreneurs and startup companies.


 


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