A New Immigration Avenue for Foreign Entrepreneurs: USCIS Acknowledges Access to National Interest Waiver Petitions for Foreign Entrepreneurs

Recently, the United States Citizenship and Immigration Services (USCIS) announced an enhanced effort to increase the number of foreign entrepreneurs in the United States in order to boost the economy and aid in alleviating the staggering unemployment rates. In this announcement, USCIS verified that the National Interest Waiver (NIW) program under the employment-based second preference (EB-2) category is available for such entrepreneurs.

The USCIS provides several avenues for foreign entrepreneurs to gain permanent resident status in the United States. One of these methods is as the beneficiary of the Employment-Based Second Preference (EB-2) category. According to section 203(b)(2) of the Immigration and Naturalization Act (INA), such a beneficiary must hold an advanced degree or have exceptional abilities and have a permanent job offer from a valid U.S. employer. It also requires that the employer file a labor certification application to demonstrate the existence of a shortage in qualified U.S. workers.

By nature of their status as an entrepreneur, however, many people who would qualify under these requirements are prevented from attaining permanent resident status. Because they seek to build their own business, foreign entrepreneurs often do not have the job offer from a qualified U.S. employer. Formerly, entrepreneurs would have to attempt qualification under other categories in these instances. However, with USCIS' new announcement, such foreign entrepreneurs can qualify under National Interest Waiver, which is an exception to the general requirement of permanent job offer and labor certification if the Secretary of Homeland Security deems it in the national interest.

In Re: New York State Department of Transportation (NYSDOT), a decision from the Administrative Appeals Unit (AAU), provides a three-prong test for deciding whether a National Interest Waiver (NIW) should be granted, and the USCIS adopted this decision as the binding authority over NIW adjudications. First prong: the alien must seek employment in an area of substantial intrinsic merit. Second prong: the proposed benefit must be national in scope. Third prong: the national interest would be adversely affected if a labor certification were required for the alien.

With regard to the first prong, foreign entrepreneurs should focus on the proposed employment and consequential boost in the economy rather than the entrepreneur's own qualifications. Building a successful business in the United States is of substantial intrinsic merit because such an endeavor introduces into the market new items of economic value and new income streams. This is especially the case for areas of high unemployment. For the second prong, the petitioner's focus should again be on the potential for job creation and the economic effects of such employment. This demonstrates national benefits because jobs created locally have a positive national impact due to the employee's new income and ability to contribute to the economy. Also, jobs created in one location--and the economic boost that results--allows for the creation of spin-off jobs in other locations. These things combined show that entrepreneurial endeavors are both meritorious and nationally beneficial, leaving only the third prong to meet.

NYSDOT's third prong is best understood in light of the labor certification process' purpose, which is to protect U.S. workers' jobs. To request an exemption from this process, the individual must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. Crucial to the third prong is proving that the national interest would not be as well served by giving the job to a U.S. worker with the same minimum qualifications. Furthermore, since "exceptional ability" is not per se sufficient to waive labor certification, the alien must present benefits to his or her field that greatly exceed the achievements and significant contributions required of aliens of exceptional ability. Thus, in order to suffice under the third prong, the petitioner must provide evidence of "specific prior achievements" that show the petitioner's ability to serve the national interest to justify the projection of future benefit. The evidence must be able to show that requiring a labor certification for the applicant foreign entrepreneur would adversely affect the national interest of creating jobs.

Foreign entrepreneurs can demonstrate specific prior achievements in a myriad of ways: evidence of successful business ventures abroad, business plan for ventures abroad to show that the companies have met the proposed goals, current number of employees, business awards, major contracts or deals, media attention, a detailed business plan for proposed venture in the U.S., and more. The emphasis should remain on how the petitioner's past achievements as an entrepreneur justifies the projection that his/her proposed business enterprise in the U.S. will create a significant number of jobs for U.S. workers. Therefore, a qualified entrepreneur petitioner for National Interest Waiver should have a track record of success as an entrepreneur. It is not only a matter of potential benefits to the U.S. national interest; rather, the projection of future benefits must be supported by solid evidence of the petitioner's past achievements as an entrepreneur.