Foreign professionals who are entrepreneurs may be interested in seeking permanent residency in the United States through an employment-based, second-preference immigrant visa (EB-2).  Through the EB-2 process, entrepreneurs can qualify for permanent residency (a green card) if they belong to a particular profession and have an advanced degree or equivalent, or possess exceptional abilities in the field for which the immigration classification is sought.

The EB-2 classification has a streamlined process for which foreign nationals can qualify under the National Interest Waiver (NIW).  Through the NIW, foreign nationals seeking permanent residency can skip the lengthy Labor Certification required by the U.S. Department of Labor and be fast-tracked through the system.

While the NIW process provides the benefit of waiving such extensive labor certification process, it does require the applicant meet a stringent standard.  Foreign nationals who seek the National Interest Waiver must satisfy a 3-prong test established by the U.S. Citizenship and Immigration Services (USCIS).

Here is how to qualify for an EB-2 NIW immigrant visa:

EB-2 Eligibility Test

Foreign nationals who wish to receive an EB-2 visa must pass an eligibility test. In 2016, the USCIS clarified the criteria for applicants, making it easier for people to complete the process.

The first step in the process is meeting one of the following two criteria:

1. Hold an advanced degree (Master’s, Ph.D. or equivalent), OR a bachelor’s degree coupled with 5 years of progressive work experience in the field; OR
2. Possess “exceptional ability” in the field, which “means a degree of expertise significantly above that ordinarily encountered in the sciences, art or business.”

This first test is rather straightforward. Either an applicant will have the required degree, or he won’t.  Alternatively, the applicant will possess “exceptional abilities,” or he won’t.  Entrepreneurs should not have a more difficult time at proving these than people who are employees of companies.

Where the EB-2 gets a bit more challenging for entrepreneurs, though, is not in this eligibility test. It is in the fact that all EB-2 applicants must have an employer who will act as their sponsor. This employer must receive a PERM Labor Certification from the U.S. Department of Labor.

However, entrepreneurs do not generally have employers – that is the nature of what they do.  Many entrepreneurs might get discouraged at this point and stop seeking the EB-2 process by mistakenly thinking that there is no way around it, but there is! And here is where the NIW part comes into play.

The National Interest Waiver Process

Foreign nationals can circumvent the tedious and extensive labor certification process by proving that they meet the NIW criteria.  Here, the applicant must establish that:

1. The endeavor (or undertaking) has substantial merit and is of national importance;
2. The applicant is well-positioned to advance the proposed endeavor; and
3. On balance, it would be beneficial to the United States to waive the job offer and labor certification.

The NIW process, then, allows entrepreneurs to be approved for an EB-2 visa without having to prove employment. If they meet all three of the NIW criteria, they will be on their way to obtaining permanent residency!

Here is a closer look at how entrepreneurs might be able to satisfy the three prongs.

1. Substantial merit and national importance

In the 2016 update to USCIS rules for the NIW, applicants are given broader opportunities to be creative with their endeavor.  For example, for entrepreneurs to show that their undertaking has substantial merit, they only need to show that their proposed endeavor will positively impact the areas of business, entrepreneurialism, science, technology, culture, health, OR education.

With respect to the national importance requirement, the applicant-entrepreneur will need to demonstrate that his endeavor, or project, “has significant potential to employ U.S. workers OR has other substantial positive economic effects.”

What was removed from the criteria was a prior requirement that their endeavor have a “national scope.” This means that even entrepreneurs who will have a more local impact can still meet the new criteria.

The best way to prove that your endeavor will meet this criterion is by creating a detailed and well-thought-out business plan. This plan should show how the product/service you are going to provide would benefit people in the U.S. substantially. The business plan should cite statistics, studies, and any other official projections to prove your point.  It will also be beneficial to show the structure of your business, if in fact you will consider providing your services by opening a business.  Said structure should provide projections of the potential job opportunities that your company will create.

2. Well-positioned

What makes you so special? That is essentially the question that you must answer for the second criteria – that you possess the experience and background that makes you “well-positioned” to advance the proposed endeavor.

The great part about the change in NIW rules for entrepreneurs is that you no longer must prove that your endeavor is likely to be successful. As any experienced entrepreneur knows, not all business endeavors are going to succeed.  However, you must show progress towards achieving your endeavor and demonstrate that you have a goal that is possible and achievable.

Part of being well-positioned to advance the undertaking requires that the entrepreneur possess the education, skills, work experience, or past success in similar projects.  As the applicant-entrepreneur, you will need to show that other entities or individuals are interested in what you can bring to the table. Entrepreneurs can do this in several ways – you can obtain recommendation letters from clients, customers, business partners, and/or government agencies, for example.  Past examples of your successes will support your endeavor because it will show your likelihood of being able to replicate those successes.

3. Balancing test for National Interest Waiver

The last step to pass to receive the NIW is to prove that your endeavor is going to be so beneficial to the U.S. interest that you deserve to circumvent the PERM process.

One of the best and easiest ways to do this is to show that your endeavor will generate jobs.  Remember that we previously discussed creating a detailed business plan to show the structure of your business? This piece of evidence comes in handy to show that you will create job opportunities for other Americans – including your own.  This can include initial projections of how many workers you will need right away, and even projections for how many you plan to add in the coming years if things go well.

USCIS often views employment of Americans as a matter of significant importance.

Beyond just showing employment projections and need, though, you will need to prove how your skills are likely to result in that employment lasting. In other words, do you have any proof that your endeavor is going to be successful enough that you will be able to set up shop and hire the people you say you are going to?

You can establish future success by providing evidence of past achievements and successes in similar projects.  Thus, USCIS will see that you can succeed because you have done so in past projects.  Using your past achievements as a future predictor of your ability to beneficially impact your proposed endeavor is a great way to prove your case.

How an Experienced EB-2 NIW Attorney Can Help

Our EB-2 NIW attorneys are highly skilled at helping clients navigate the immigration system, from gathering the necessary documentation through preparing for an interview and completing the final paperwork.  Colombo & Hurd is dedicated exclusively to the practice of immigration law and we work collaboratively with our clients to help them achieve their goals. Please find below a chart of the standard process for the EB-2 NIW from the initial consultation through approval. As of early 2021, approvals are taking an average of just under a year for processing.

If you are interested in in the EB-2 National Interest Waiver, contact our office today to schedule a consultation.  Initial consultations can be scheduled online, or by calling our Orlando office at (407) 478-1111 our Tampa office at (813) 444-1114 or our Miami office at 305-455-0590. We assist foreign nationals from all over the world file successful NIW applications and would like to provide a thorough analysis concerning the specifics of your matter to determine if you are qualified to apply.