Recently, USCIS published new guidelines for the Employment Based Second Preference (EB-2) Immigrant Visa Category. In particular the new guidelines outline how Entrepreneurs can apply under the National Interest Waiver under this visa category. An Entrepreneur qualifies under this category in two ways, as a person holding an advanced degree, and a person who has an exceptional ability in the arts, sciences, or business.
First, the Entrepreneur must show that he or she is a person who holds an advanced degree or an individual of exceptional ability. Next, the Entrepreneur must show that their work is in the national interest. Although the term “national interest” is not defined by law, the case of New York State Department of Transportation has a three prong test that the Entrepreneur must meet in order to qualify. The three prongs of the test are:
1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
3. The waiver applicant 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 waiver applicant.
Under the first prong of the NYSDOT test, the 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 NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit.
Under the second prong of the NYSDOT test, it requires that the Entrepreneur demonstrate that the proposed benefit to be provided will be national in scope. For example, the Entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, 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.
Finally, NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States. An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. NYSDOT’s third prong requires that the Entrepreneur “present a significant benefit to the field of endeavor.” The field should be the same as that identified in prong one of the analysis and the Entrepreneur must document how the entrepreneurial enterprise will benefit that field.
“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.”
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 NIW. For example, the Entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.
Based on the new guidelines, the Entrepreneur is now an individual who may get a visa under the National Interest Waiver. They must still meet the requirements under the current case law in order to prevail on a National Interest Waiver petition, but this bodes well for many individuals seeking to take their entrepreneurial spirit and making a difference on a national level. If you are an Entrepreneur that has an idea that might be in the national interest, please contact our office for a consultation so we can help you out. Let us hope that this new classification provides new opportunities for many Entrepreneurs out there.