Although foreign national entrepreneurs have helped shape the U.S. economy both historically and recently, the current U.S. immigration system is not friendly to them, especially in seeking the coveted “green card.”
A recent policy update from the White House aims to change that by clarifying how an entrepreneur can qualify for a “National Interest Waiver.”
Typically, to immigrate based on employment, a specific job from a specific employer is required. That employer must then test the labor market through a process overseen by the Department of Labor (DOL) to assess whether a qualified U.S. worker is ready to do the job.
However, if the employer is owned by the foreign national who is attempting to immigrate, no labor market test can be done. The DOL assumes that the owner would not replace herself by hiring a U.S. worker.
What is an entrepreneur to do? One option is to apply for a waiver of the labor market test by showing that their immigration would be in the “national interest waiver” (NIW). However, how this can be demonstrated has not been entirely clear.
NIW Evidence for Entrepreneurs
Guidance published on January 21, 2022, aims to address this problem by outlining specific evidence that may be used by an entrepreneur in applying for an NIW. The list includes:
- Evidence of the entrepreneur’s ownership and role in the U.S.-based entity.
- Degrees, certifications, licenses, letters of experience indicating that the entrepreneur has “knowledge, skills, or experience that would significantly advance the proposed endeavor.”
- An investment, binding commitment to invest, or other evidence demonstrating a future intent to invest in the entity by outside investors, consistent with industry standards in terms of the nature and amount of the investment.
- Incubator or accelerator participation as an endorsement of the proposed plan or past track record.
- Awards or grants from a variety of entities, including governmental, policy, or research organizations as an independent validation.
- Intellectual property development as a prior record of success or potential progress toward achieving the endeavor.
- Published materials about the entrepreneur, the entity, or both from reputable media sources.
- Revenue generation, revenue growth, and job creation.
- Letters and other statements from third parties.
The guidance also highlights the current rule that shows that the business is more likely than not to ultimately succeed is not required because the nature of entrepreneurship is often try and sometimes fail.
“They instead need to show that the proposed endeavor has both substantial merit and national importance, that the petitioner is well-positioned to advance the proposed endeavor, and that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.”
Finally, the guidance recognizes what should be obvious: “In the case of an entrepreneur, where the person is self-employed in a manner that generally does not adversely affect U.S. workers, or where the [entrepreneur] establishes or owns a business that provides jobs for U.S. workers, there may be little benefit from the labor [market test].”