Understanding EB-2 NIW for Entrepreneurs

The EB-2 National Interest Waiver (NIW) is a visa (and ultimately, a green card) for top-tier foreign professionals seeking to positively impact the United States through their work, and to become lawful permanent residents as a result. Requesting a waiver is essentially imploring the U.S. government to allow the foreign national to forgo the labor certification and job offer requirements employment-based visa petitioners must otherwise obtain.

The petitioner must simply be able to prove that their work has intrinsic merit, and is of national importance in the professional fields of business, education, healthcare, or science, technology, engineering, and mathematics (STEM).

What is EB-2 NIW For Entrepreneurs?

The EB-2 NIW visa is a second preference, employment-based National Interest Waiver, and is reserved for those with an advanced degree or exceptional ability in their field of expertise.

In January of 2022, the United States Citizenship and Immigration Services (USCIS) announced its expanded initiatives for improving the U.S. economy, by broadening the EB-2 NIW visa category — to include foreign entrepreneurs. As a result, this effort also contributes to the creation of jobs in the U.S.

Benefits for Entrepreneurs and Startup Founders

Under normal circumstances, employment-based visa applicants are otherwise subject to a lengthy process. First, they must seek a job from a U.S. employer willing to sponsor their visa. Then, their potential employer must prove their honest attempt to recruit a willing, able and available U.S. citizen for the job. When such a worker cannot be found, the employer must obtain a labor certification from the Department of Labor. The process is costly and also takes at least one year to complete.

Alternatively, qualified applicants can petition on their own, circumventing the Program Electronic Review Management (PERM) process altogether. So, it is clear that requesting a waiver of such requirements greatly benefits both the foreign entrepreneur, and potentially the country — upon successful obtention of an NIW. Thus, making it a great option for business owners, entrepreneurs, startup founders, and co-founders alike.

Eligibility Requirements for EB-2 NIW

The mere reason the foreigner is the founder of their company does not qualify him or her for a national interest waiver. In order to qualify for an NIW, the foreign entrepreneur must first satisfy the requirements of the EB-2 visa, by providing documentary evidence he or she holds one or more of the following:

Advanced Degree: A Bachelor's degree (with five years of post-graduate work experience in the related field), a Master's or a Doctorate Exceptional Ability: Expertise in their profession which is significantly higher than what is ordinarily encountered in their field of expertise

The Three-Pronged Test for Entrepreneurs

Once eligibility has been established, the startup founder or entrepreneur must then satisfy each of the three-pronged test requirements, which are as follows:

  1. Have a proposed endeavor with substantial merit and national importance to the U.S.
  2. Possess the ability to develop and/or advance their proposed endeavor in the U.S.
  3. Demonstrate how their work would be beneficial to the U.S.

Application Process for EB-2 NIW

As the EB-2 NIW is an employment-based opportunity for permanent U.S. residency (a green card), petitioners (already lawfully inside the U.S.) may elect to file their green card Application to Register Permanent Residence or Adjust Status (Form I-485) concurrently with their Immigrant Petition for Alien Workers (Form I-140) visa application. If the petitioner is applying from outside of the U.S., they would follow the Consular Processing procedure. Otherwise, he or she may choose to wait for their visa approval before applying for permanent residency.

Required Documentation

Depending on the entrepreneur's case, he or she will be required to provide a combination of the documentary evidence listed below. Though additional evidence required for EB-2 NIW startup founders is discussed in greater detail later.

The initial evidence is as follows:

  • Relevant higher education degree(s)
  • Knowledge, skills and record of success
  • Résumé
  • Curriculum vitae (CV)
  • License or certification to practice the profession
  • Membership in professional association(s)
  • Scholarly publications
  • An EB-2 NIW Recommendation letter
  • Awards or grants from local, state or federal government entities — especially with expertise in economic development, job creation or research and development (R&D) 
  • Recognition for achievements or contributions by professional peers, media, governmental entities, or any other business organizations
  • Opinion letters from experts in the same field
  • Personal statement (cover letter) which includes the satisfaction of the USCIS’s three-pronged test requirements
  • Description of the proposed endeavor
  • Plan or model he or she developed for future proposed endeavor-related activities
  • Past or current progress or contribution(s) as it relates to the proposed endeavor
  • Business plan
  • Concrete interest from potential clients, end users, investors, etc.
  • Compensation demonstrating exceptional ability
  • Cover letter from the business immigration lawyer (when applicable)
  • Copies of immigration documents such as passport, visas, past U.S. arrivals and departures

Specific Considerations for Startup Founders

It has only been since 2016 that the USCIS extended the NIW possibilities to entrepreneurs, especially as startup founders. Contending how it would be impractical (and not necessarily in the nation's best interest) for qualified business owners to secure a U.S.-based job offer while he or she worked to advance their own invention or enterprise, without also losing their proprietary rights. Which was technically the result of the Matter of Dhanasar case decision.

The Matter of Dhanasar, though not exactly intended to be used for entrepreneurs or startup founders, its three-pronged test was the foundational framework now used for entrepreneurial NIW eligibility decisions. Consequently making it applicable to entrepreneurs, startup founders and co-founders.

USCIS Policy Manual Updates

Eventually, this later resulted in an update to the USCIS's Policy Manual to include specific evidentiary considerations for entrepreneurs who will possess an ownership interest in their enterprise, and who will maintain an active and central role in its significant advancement. This is monumental, as many entrepreneurs may not have followed traditional career paths.

Additional Evidence for Entrepreneurs

In addition to the aforementioned criteria requirements for EB-2 NIW petitioners, startup founders are required to provide proof of the following evidence:

  • Ownership of the U.S.-based enterprise
  • Role in the U.S.-based enterprise
  • Concrete examples of successful prior start-up entities (if applicable)
  • Certification or license which has equipped the petitioner to advance their proposed endeavor
  • Investments from individuals or established venture capital firms
  • Binding investment commitments
  • Support, assistance or resources from a private or public entity (incubator), fostering the development and growth of the startup founder’s idea or enterprise
  • Active participation from a private venture capital entity (accelerator), helping  entrepreneurs with the speed of the launch, and likewise the growth and scale of their business
  • Past success of incubator or accelerator participation (when applicable)
  • Intellectual property, such as relevant patents 
  • Patents related to a past startup enterprise’s potential progress and probative success, through the petitioner’s contribution, and the application thereof  
  • Published materials or significant attention and/or recognition by the media about the petitioner, or their role in their U.S.-based entity
  • Revenue generation, revenue growth and/or U.S. job creation
  • Letters or statements from government entities, outside investors or other business associations attesting to the petitioner’s knowledge, skills, experience, research, technologies, products, or services that have or would advance his or her proposed endeavor

Conclusion: EB-2 NIW as a Gateway for Exceptional Entrepreneurs

In conclusion, the EB-2 NIW visa is reserved for only the most exemplary of individuals. With the provisions to self-petition, foreign entrepreneurs holding substantial records of outstanding achievements must use this opportunity to demonstrate how their exceptional abilities enable him or her to outperform any otherwise available U.S. citizen, through their entrepreneurial role.

Intrinsically, the U.S. government views such positive national impact, through reaching across education, economics, healthcare, STEM, and ultimately the employment of U.S. citizens through job creation, as significantly important to the U.S. as a nation.

Though entrepreneurs and startup founders should certainly be persuasive in their EB-2 NIW petition, the entirety of the application packet should surpass the initial claim of the enterprise's success or its potential for revenue. It must therefore contain concrete evidence of how the business entity's significance is a proposition for adding value to the country. Either through efficiency, development, technology, public health interests, specific sectoral growth, or the overall betterment and welfare of the nation's people.

As a result, obtaining an EB-2 NIW is one of the best employment pathways for qualified entrepreneurs and startup founders. First to positively contribute to the U.S. economy, to develop and grow their enterprise, then to become a lawful U.S. permanent resident, and finally to become a U.S. citizen.