The National Interest Waiver for Entrepreneurs - Frear Law

The Key Benefits of the National Interest Waiver

Usually, the employment based green card process requires the employer to go through a labor certification process.

This process is designed to determine if there are any minimally qualified US workers for the proposed position. Although the requirement is well intentioned, the process can be frustrating, time consuming and expensive.

Fortunately, many entrepreneurs have the ability to dodge the labor certification process and self petition for a green card if they qualify for a National Interest Waiver under the EB2 green card category.

The EB2 NIW Green Card--Initial Requirement

In order to qualify for a National Interest Waiver under the EB2 category, you will have to satisfy the requirements for both the category and the waiver.For the EB2 National Interest Waiver Green Card, you will first have to show that you are a professional with an advanced degree(or equivalent). As an alternative, you can qualify if you can demonstrate that you have exceptional ability in the arts, sciences or business.

If you determine that you can meet this initial requirement, then you can examine the other requirements for the National Interest Waiver.

Other National Interest Waiver Green Card Requirements

For an entrepreneur to qualify for a NIW Green Card, they must show(by a preponderance of evidence) that:

  1. Their proposed business has substantial merit and national importance 
  2. They are well positioned to advance the business enterprise 
  3. On balance, it is beneficial to the US to waiver the labor certification process 

Substantial Merit and National Importance

Before you can qualify for a National Interest Waiver, you must show that your proposed endeavor has both substantial merit and national importance. This requirement sounds intimidating. Most people tend to think that their business venture in the US could never qualify under this prong. 

Fortunately, the impact of your business does not have to be national in scope to have substantial merit and national importance. Entrepreneurs who create a positive local or regional impact can qualify for an NIW. The administrative appeals office has made this clear by stating that “even ventures and undertakings that have their focus on one geographic area of the US may properly be considered to have national importance.”

Well Positioned to Advance the Proposed Endeavor 

For this prong, you have to show that you have the skills to execute on your vision. In deciding this issue, USCIS will examine your track record and education. Do you have an academic background that makes you ideally suited to advance the proposed endeavor? Have you successfully started similar businesses in the past? 

If USCIS believes that you are qualified to advance the business, then you will have satisfied this requirement.

Waiving the Labor Certification Process Would be Beneficial

To satisfy this requirement, you have to show that on balance it is beneficial for the US to waive the labor certification process. Oftentimes, the argument can be made that the labor certification process is a poor fit for entrepreneurs who are trying to build an enterprise. The labor certification is designed to find minimally qualified workers. The US does not want minimally qualified entrepreneurs. We want world class entrepreneurs who are more likely to excel and create innovative companies that employ US workers. Therefore, the labor certification process is not appropriate.

Filing for the National Interest Waiver

Gathering Documentation

After you decide that a National Interest Waiver would be a good fit, you will work with your business immigration lawyer to gathering supporting documentation. This could include the following documentation depending on your circumstances:

  • Degree information
  • Expert opinion letters
  • Compensation that demonstrates exceptional ability
  • Recognition for achievements and contributions by peers, government entities, business organizations etc.
  • Resume/CV
  • Grants or Patents
  • A detailed description of the proposed endeavor
  • A comprehensive business plan
  • Copies of biographical pages from passports 
  • Documentation demonstrating that it is in the National Interest to waive the job offer and labor certification requirements
  • A cover letter from the business immigration lawyer 
  • An index of exhibits
  • Status documents(ie. I-94 Arrival/Departure Record, Visas, Etc.)

Completing the Forms

In addition to the supporting documentation mentioned above, the following forms are typically submitted:

  • Form G-28: Notice of Entry of Appearance as Attorney
  • Form I-140: Immigrant Petition for Alien Worker
  • ETA Form 750B or ETA 9089
  • Form I-485: Application for Adjustment of Status(Depending on visa numbers, location and status of the applicant)

Adjustment of Status or Consular Processing

As long as immigrant visa numbers are immediately available, those who are in the US in valid nonimmigrant status may apply for adjustment of status using form I-485. This can be submitted concurrently with the form I-140. 

Those who are outside of the US at the time of the application will typically go through consular processing before obtaining an immigrant visa. In order to estimate visa availability, you can view the latest visa bulletin

NOTE: Nationals of China and India have a long wait under the EB2 Category. Entrepreneurs from these countries should consider other options such as the E2 Visa via Citizenship by Investment in Grenada.

Filing Fees for the National Interest Waiver

You can find filing fees by visiting the USCIS webpage for the I-140 and I-485. Currently, the filing fee for the I-140 is $700. The filing fee for the I-485 is $1140(plus an additional biometrics fee of $85).

Adjudication Time

People understandably want to know how long it will take to adjudicate an application. Unfortunately, premium processing is not available for National Interest Waiver applications. Therefore, your immigration lawyer can only guess based on the current posted processing times for the I-140 and I-485. While processing times are unpredictable, you can usually expect the process to take between 6-18 months. 

Conclusion: The National Interest Waiver(NIW) for Entrepreneurs

The National Interest Waiver is a fantastic option for many entrepreneurs who want to start or expand a business in the US. The major benefits include the ability to self petition and the ability to forgo the labor certification process before a green card can be acquired. For more information, reach out to one of the many amazing business immigration lawyers that we have across the US. 

FAQ

Common National Interest Waiver Green Card Questions

The National Interest Waiver allows qualifying individuals to self petition for a US green card. This option is available when USCIS decides that it would be in the National Interest of the US to waive the typical job offer and labor certification process.

While it is difficult to predict how long the government will take to adjudicate a petition, you will usually receive a decision within 6-18 months.

Yes. There are several employment based green card categories that permit an individual to self petition for a green card. These include the Eb1a, the Eb5 and the Eb2(National Interest Waiver).

The national interest waiver(NIW) is typically used by those who qualify for an Eb2 Green Card.

Frear Law PLLC

My name is Ben Frear. I am a business immigration lawyer and the founder of Frear Law PLLC.  My practice serves and celebrates inspiring immigrant entrepreneurs and other world class performers. I use modern technology that enables me to work closely with clients across the US and beyond. If you would like to learn about how my firm could help you, please feel free to reach out to me!