Intro: The NIW Green Card for Entrepreneurs

In my practice, I primarily handle E2 visas because— for most of my clients—this visa is a perfect fit. Afterall, the E2 visa enables entrepreneurs to come to the US to direct and develop a business in which they have made a substantial at-risk investment which is exactly what most of my clients want to do.

But, despite its benefits, the E2 visa isn’t great for everyone. 

For example, a lot of talented entrepreneurs simply won’t qualify because their country of nationality doesn’t not have an E2 treaty with the United States. Other founders will not qualify as E2 investors because they own less than 50% of the business in which they have invested. 

And…even if a particular entrepreneur qualifies for the E-2 visa, it makes sense to put some thought into the national interest waiver green card(AKA NIW green card) option assuming that they want to stay long term in the US.

National Interest Waivers for Startup Founders: The Requirements

Below, I discuss the basic requirements of the NIW green card, so you can do a basic self assessment before you reach out to an immigration lawyer.  After learning some details, many people quickly come to the conclusion that the national interest waiver isn’t a great option for them. But you never know until you look at the requirements. So let’s jump in and talk about some things that founders should know about this option.

The first thing to know isn’t really a requirement, but it is something that I suspect will turn off a lot of people right away…

NIW Green Card Wait Times

If you were to decide to file for a national interest waiver green card, you would spend a few months to gather all of the necessary evidence and complete the forms. Then once everything is perfect, you would mail your evidence to USCIS. And then, you would wait…and wait… and wait. Since premium processing is not currently an option, you may have to wait 12-24 months  to get a response from the US government. 

For those of you who are not scared away by that unfortunate reality, continue reading to learn about the requirements of national interest waivers for startup founders.

The Requirements

To satisfy the first requirement, you must show that you have exceptional ability or a master’s degree or a bachelor’s degree plus five years of progressive experience in the field. As you can imagine demonstrating the attainment of a master’s degree is pretty straightforward. Demonstrating exceptional ability in the other hand  is a little more challenging.

Exceptional ability can be demonstrated by any of the three following types of evidence:

• An academic record showing a degree, diploma, certificate, or similar award relating to the area of exceptional ability; 
• Letters from current or former employers documenting at least ten years of experience;
• A license to practice a profession or certification for a profession or occupation;
• Evidence of a high salary;
• Membership in a professional association;
• Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations; or
• Comparable evidence if these categories aren’t available

Obviously it is best to avoid having to make this type of showing, so entrepreneurs with a master’s degree or the equivalent are at a distinct advantage over those who have to do the heavy lifting of proving exceptional ability.

For those of you that have the proper educational background or confidence in your ability to demonstrate how you are exceptional, it is time to look at the three prongs that make up the primary national interest waiver requirements as articulated in a case called Matter of Dhanasar.

Matter of Dhanasar: Substantial Merit and National Importance

For the first prong, you must show that your planned endeavor has substantial merit AND national importance. 

“Substantial merit” typically isn’t much of a challenge for start-up founders since job creating business endeavors are generally considered to be beneficial. Unfortunately proving national importance is more difficult. 

This requirement can be met if an undertaking is expected to have national or even global implications or if it is anticipated to have a huge impact in a particular field.

Entrepreneurs like to point to job creation to meet the national importance requirement. But, while job creation is great—especially if it is substantial—if you can show that your startup brings a broader benefit to the American public, you will strengthen your case and improve your chances of a successful application. 

Matter of Dhanasar: Well Positioned to Advance the Proposed Endeavor

In addition to proving that your endeavor has substantial merit and national importance, you will also need to prove that you are well positioned to advance the proposed endeavor.

In the startup context the following questions will be considered by the government to determine if a founder meets this requirement…

• Does your unique combination of experience, edu and knowledge put you in an ideal position to advance the startup? 
• Have you succeeded in similar efforts?
• Can you demonstrate your past success through media, awards, etc.?
  • If so, the gov’t will be more likely going to find that you are likely to succeed with your current endeavor?
• Has the startup made any progress?
  • Do you have customers?
  • Can you demonstrate substantial growth?
  • Has the company attracted investments from venture capital firms or received grants from government entities?
  • Has the startup received support from incubators or accelerators?
  • Have any relevant patents been secured?

In other words…is the business doing well at this stage and have you played a central role in the company’s early success

Matter of Dhanasar: Balancing Test

For the final requirement you have to show that on balance, it is beneficial to waive the job offer and labor certification requirements that are typically associated with employment based green card applications. Without a doubt, meeting the national interest waiver requirements is a difficult task. But, fortunately, it is typically fairly easy for founders to satisfy this last requirement. 

There are a few reasons why this is the case…

First of all, the standard employment based green card process requires an employer to look for a minimally qualified worker through the labor certification process. When you are talking about a startup that is nationally important, you don’t want someone who is minimally qualified. You want the best person(typically the founder) to move that company forward.

And perhaps the best and most elegant argument is simply that entrepreneurs are not a good fit for the standard labor certification process. With regards to labor certification, the Dhanasar case states…

It has proven particularly ill-suited for USCIS to evaluate petitions from self-employed individuals, such as entrepreneurs.

Conclusion: National Interest Waivers for Startup Founders

Now that you are armed with this general info, you can think about this path in light of your unique situation. And if you decide that this could be a decent option for you, I encourage you to reach out to one of the many amazing US immigration lawyers that you can find across the globe.

Thanks for your time and best of luck as you explore your US immigration options!