As discussed in a recent blog post, USCIS has announced that it is encouraging entrepreneur job creators to utilize the EB-2 National Interest Waiver (NIW) category to qualify for permanent residence.  This category is extremely beneficial as applicants obtain EB-2 visas without having  a job offer or having to go through the arduous Department of Labor  PERM  Labor Certification process.

The question remains, however,  of how entrepreneurs will be able to demonstrate that they meet the National Interest Waiver standards, and  how individual USCIS adjudicators will interpret the new  guidance. If history is any guide, initial ignorance and narrow readings of the guidance should eventually be followed by more reasonable interpretations.

Advanced Degree Requirement: First, an entrepreneur wishing to file for an EB-2 National Interest Waiver (NIW) must show that she holds a  Masters Degree or higher. If  the entrepreneur cannot  make this showing, she can still file an NIW petition if she has 10 years of experience and has been recognized by her peers has having made significant contributions to her field. Second, the entrepreneur must show that her company's mission is in the national interest of the United States. This is the hard part. USCIS maintains that there is not statutory or regulatory definition of this term, but rather that "national interest" is determined through a three prong test first laid out in Matter of New York State Department of Transportation, 22 I&N Dec. 215 (BIA 1998)(NYSDOT).

Intrinsic Merit: The first prong of the test states that the entrepreneur must be working in an area that has "intrinsic merit."  USCIS refers to the NYSDOT matter for an example of an foreign national who was a structural engineer working on highway bridges who qualified for such a waiver.  Although USCIS is silent beyond this as to what constitutes "intrinsic merit," it would appear that such work would have to be that which provides immediate, tangible benefits for the good of others in American society.

National in Scope: The second prong holds that the work to be done by the person seeking the waiver will be national in scope; USCIS specifies that this could involve work done on a local level which may create jobs at the national level, or will otherwise have a positive national impact. 

PERM Bypass: For the third prong, the entrepreneur must show that her work would provide such a national benefit that she should be permitted to bypass  the normal labor certification process to obtain her permanent resident status. While these requirements may sound a bit daunting at first, entrepreneurs should not be discouraged. These applications are doable with some work and a lot of documentation. Potential job creators with strong vision, good business plans and perseverance should consider the EB-2 NIW as a viable route to legal permanent residence.

Stuck in EB-3? Start a Business: This new interpretation of the NIW may also provide an opportunity for highly-skilled foreign nationals who have been languishing in the long lines of the EB-3 category to find a way out and up into EB-2 while at the same time pursuing their entrepreneurial dreams, something they could not have even considered until last month.