A New Standard for National Interest Waivers : An Entrepreneur's Benefit

What is a National Interest Waiver? 

Under the second preference of employment-based immigrant visa category, a NIW is a waiver of the job offer requirement - and therefore the labor certification - because it is in the "national interest". The waiver is only available for professionals with an advanced degree (such as an Engineer with a masters degree) or those with an exceptional ability in the sciences, arts or businessThis would allow an entrepreneur to self petition under the second preference category. 

The New Standard: Matter of Dhanasar 

On December 27, 2016, the AAO issued Matter of Dhanasar which should make it easier for entrepreneurs to qualify for the National Interest Waiver, though its effectiveness will be determined by whether USCIS adjudicators interpret the new standard as intended. The decision overturns a 1998 decision (NYSDOT), and has three parts: 

1) The “foreign national’s proposed endeavor has both substantial merit and national importance”; 

2) The “foreign national is well positioned to advance the proposed endeavor”; and 

3) The United States would benefit “on balance” if the job offer and permanent labor certification requirements are waived. 

If these requirements are met, USCIS may approve the NIW as a matter of discretion. 

The new standard notes that a petitioner's intended work can be in the national interest even when it is limited to a certain geographic location (prong one). Under prong two, it examines the "potential prospective impact" of the foreign national's intended work – as opposed to limiting the consideration primarily to the past achievements as a measure of future benefits often previously used.  The decision recognizes that many endeavors and entrepreneurial pursuits may ultimately fail, "despite an intelligent plan and competent execution". Dhanasar directly rejects that a foreign national must prove they are more likely than not to succeed.  

The new third prong also removes the need for a showing of harm to the national interest if the petitioner is not granted a waiver, or a comparison of US workers in the petitioner's field. This makes the waiver standard much friendlier to entrepreneurs and the self-employed. 

Other Options for Entrepreneurs 

The National Interest Waiver option may benefit entrepreneurs more so than it had done in the past. But what if it does not seem right for you? Many entrepreneurs enter the United States through nonimmigrant E or L-1A visa categories or the EB-5 investor immigrant program. Recent proposals to the EB-5 program mean that the investment minimums are likely set to rise this year, creating a further financial barrier to prospective EB-5 clients. 

USCIS also recently finalised the Entrepreneur Parole Program, though the rule puts many limitations (including funding restrictions) on the entrepreneur.  

 

If you would like to speak to an experienced US Immigration Lawyer about a National Interest Waiver or other entrepreneur visa options, please email us on info@baimmigrationlaw.com. 

 

DHS Proposed Rule : Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers

On December 31, 2015, the Department of Homeland Security proposed amendments to its regulations related to certain employment-based immigrant and nonimmigrant visa programs. Many of the changes are aimed at improving the ability of US employers to hire and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents, while at the same time increasing the ability of such workers to seek promotions, accept lateral positions with current employers, change employers or pursue other employment options.

DHS proposes to amend its regulations:

1 - consistent with worker portability and other provisions in the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA).

2 - governing certain employment-based immigrant and nonimmigrant visa programs to provide additional stability and flexibility to employers and workers in those programs. This includes improving job portability for certain beneficiaries of approved employment-based immigrant visa petitions by limiting the grounds for automatic revocation of petition approval; further enhance job portability for such beneficiaries by increasing their ability to retain their priority dates for use with subsequently approved employment-based immigrant visa petitions; establish or extend grace periods for certain high-skilled nonimmigrant workers; and provide additional stability and flexibility to certain high-skilled workers by allowing those who are working in the US in certain nonimmigrant statuses, are the beneficiaries of approved employment-based immigrant visa petitions, are subject to immigrant visa backlogs, and demonstrate compelling circumstances to independently apply for employment authorization for a limited period.

3 - governing the processing of applications for employment authorization to minimize the risk of any gaps in authorization. These changes would provide for the automatic extension of the validity of certain Employment Authorization Documents for an interim period upon the timely filing of an application to renew such documents.

 

The comment period for the proposed rule ends on February 29, 2016.