Understanding the National Interest Waiver
Foreign workers who want to obtain a green card granting them permanent residence in the US have a few avenues to get to that goal. Typically, they need to have a job offer from a qualified US employer, and this can take months or longer for the process of approval to reach completion. The employer has many levels of requirements to meet, starting with advertising for qualified US nationals, all the way up to a screening to receive the PERM approval from the Department of Labor.
However, qualified workers may be able to skip this lengthy wait if they have what it takes to obtain a National Interest Waiver. This document works similarly to the EB-2 work visa, with one major difference: The petitioner may file for themselves rather than depend on an employer to sponsor them, skipping the PERM process entirely. As a foreign entrepreneur, your chances of obtaining a successful NIW have increased with Biden’s new legislation.
Eligibility for an NIW
Entrepreneurs, by nature, work for themselves, making it complicated to wait for a job offer from another employer simply to obtain work in the US with the goal of eventual permanent residency. When you qualify for an NIW, you don’t have to take this problematic path.
You, along with your immigration attorney if you choose to retain counsel, complete the paperwork and submit documentation requesting the government to waive the usual requirement of a job offer. For this to be successful, you must prove your case by saying that your work is of national interest to the US.
Because the eligibility criteria for the NIW stipulate through the Matter of Dhanasar that the foreign national must have a graduate degree or exceptional ability leading a proposed endeavor of substantial merit and importance, an entrepreneur with a solid business endeavor meets that definition. Provided the endeavor has merit, and the petitioner is in a place to advance the project, the government may decide it would be beneficial to waive the usual requirements of a job offer and labor certification. Since entrepreneurs are an essential part of the US economy, it’s easy to see where the connection between someone with a talent for business and an idea or existing company would fall into this definition.
The Matter of Dhanasar’s decision in 2016 included an opening for entrepreneurs. The Administrative Appeals Office noted that NIWs would be appropriate in situations such as a self-employed inventor or entrepreneur attempting to enter the US to advance their invention or business. In those cases, waiting for a job offer could mean losing their proprietary rights to an idea that was distinctly their own.
The January 2022 policy changes did not change the three criteria required for an NIW, but they do address how a foreign entrepreneur can best use this matter to successfully apply for a waiver, as well as what kind of evidence they should use.
What’s Next?
One result of the COVID-19 pandemic has been a significant global acceptance of self-employed business owners as legitimate workers. As a foreign entrepreneur, you can use this advance in the economic climate to your advantage by hiring a skilled immigration team, like Visa2US, to file a National Interest Waiver on your behalf.
Our experienced attorneys know what evidence is necessary for entrepreneurs to obtain an NIW, what the government looks for when they determine “national interest,” and how to navigate the paperwork and deadlines. When you want to retain ownership interest and a central role in your company, an H-1B or EB-2 visa isn’t the right way to go. Instead, let us prove the three prongs of the Matter of Dhanasar, showing the government that you have the necessary criteria to make a national interest waiver a strong balance.
You only get one shot at proving yourself before the government, and you don’t have to argue your case on your own. Contact our skilled professionals at Visa2US today to get started on the path to permanent residency in the US.
