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. 


USCIS Proposes Changes in EB-5 Program, including Increase in Investment Minimums

In a proposed rule published on 13 January 2017, USCIS / DHS moves to alter and modernize the EB-5 program for immigrant investors. The program allows individuals who are eligible to apply for lawful permanent residence in the United States if they make the necessary investment in a commercial enterprise in the United States and create or, in certain circumstances, preserve 10 permanent full-time jobs for qualified U.S. workers. USCIS is accepting feedback from all interested parties until 11 April 2017. The key areas which are proposed to change or codify existing practices are below.

Increase to the Minimum Investment Amount (for TEAs and nonTEAs) 

Currently, the investment minimum for Targeted Employment Areas (TEAs) is $500,000 and $1,000,000 for non-TEAs. USCIS proposes to increase these significantly - for TEAs, to $1.35 million, and for non-TEAs to $1.8 million. These changes represent an adjustment for inflation from 1990 to 2015.  In addition, DHS is proposing to make regular Consumer Price Index – for all Urban Consumers (CPI-U) - based adjustments in the standard minimum investment amount, and conforming adjustments to the TEA minimum investment amount every 5 years.

Revisions to the TEA designation process

DHS proposes to take over the TEA designation process, away from the current process in which a state may designate certain geographic and political subdivisions as high unemployment areas. Under the rule, any city or town with high unemployment and a population of 20,000 or more would qualify as a TEA.

Priority date retention for EB–5 petitioners

In a positive move, the rule would allow for EB-5 petitioners to  authorize certain EB–5 petitioners to retain the priority date of an approved EB–5 immigrant petition for use in connection with any subsequent EB–5 immigrant petition. A priority date represents an immigrant's 'place in the queue' which will remain important as DHS believes the program will continue to be oversubscribed.

What Happens Now

The current re-authorization of the EB-5 program is set to expire on 28 April 2017. The new rule is a proposal only, so it will not become law until USCIS/DHS receives feedback from the public and eventually issues a final regulation. 

To speak with an experienced US Immigration Lawyer about the EB-5 immigrant investor visa, please email info@baimmigrationlaw.com or call us on  +44 (0)203  102 7966