A few days before the New Year, the United States Citizenship and Immigration Services (USCIS) published a landmark decision that will make it easier for foreign entrepreneurs to get permission to live permanently in the U.S.
The ruling, which came through USCIS’s Administrative Appeals Office (AAO), will revamp a green card visa category known as the National Interest Waiver (NIW).
For most green cards, an employer must sponsor a foreign worker and show that they have tried unsuccessfully to recruit an American worker for the same job. The National Interest Waiver foregoes that requirement, based on a compelling case that the individual’s work benefits the country.
It is commonly used for scientists and researchers — think a researcher trying to find a cure for cancer — but the NIW is one of a very limited number of categories in which an individual can petition or apply for a green card on their own, without an employer.
The new ruling updates the standards for a National Interest Waiver and makes them more realistically attainable. It is particularly exciting because self-employed entrepreneurs and startup founders haven’t had a good route to get a green card — until now.
The new case, Matter of Dhansar ‘vacates’ or removes the old case Matter of New York State Department of Transportation – a case that has governed this area of law since 1998.
Under that case, NIW has been a difficult standard to meet in general, and almost impossible for entrepreneurs. The old case had a three-prong test:
1) The petitioner must show that the area of employment is of “substantial intrinsic merit.”
2) A petitioner must establish that any proposed benefit from the individual’s endeavors will be “national in scope.”
3) The petitioner must demonstrate that the “national interest would be adversely affected if a labor certification were required for the foreign national.”
All three prongs were difficult to prove, but for founders, the second and third prongs were especially problematic.
Matter of Dhansar sets a new three prong test:
1) That the foreign national’s proposed endeavor has both substantial merit and national importance:
This can apply to any discipline or industry, and the new decision specifically mentions business and entrepreneurship — good news for startup founders!
With regard to “substantial merits,” the decision mentions that the emphasis will be on “potential impact” and the applicant doesn’t need to show “immediate or quantifiable economic impact.”
I would have expected to see specific requirements on how much money an entrepreneur must have raised, revenue they should have generated or jobs they should have created, but there are no such benchmarks. With this new standard, demonstrating the potential positive impact in the future can satisfy the test.
Regarding “national importance,” the decision makes clear than geography is not important anymore. In the old case we had a test of “national in scope.” Now we can focus on “broader implications.” The decision gives the example that economic development in depressed areas can have national importance. So, we can show local economic impact, as is the case with many startups especially in the early stages.
2) That the foreign national is well positioned to advance the proposed endeavor:
The emphasis here changes from the “work” (proposed endeavor) to the “individual applicant” (foreign national). The decision makes clear that applicant’s background, skills, experience, record of past success and future potential will all be taken into account.
This will include demonstrating that the applicant can make progress on the work and allows supporting evidence of “customers, users, investors and other relevant entities and individuals.” I find it very interesting that the use of “investor” is included here, clearly keeping entrepreneurship and founders in mind.
3) 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.
The previous law required that we demonstrate losing the applicant would harm the U.S. It has always been a challenge to prove that losing one person would be truly harmful to the whole country. Instead, now we can show that the individual will be beneficial to the U.S.
USCIS will evaluate applicant’s background and work impact to see if it will be ‘impractical” to get a job offer or labor certification and whether it is ‘sufficiently urgent’ to waive the labor certification. USCIS will take all factors into consideration and will make a decision on balance. If all three criteria are met, they can approve the case.
The above criteria are much clearer than the previous standards, and give concrete examples. The case shifts overall focus to the individual and the impact the person will make.
Matter of Dhansar opens the door, allowing talented people to apply for permanent residency in the U.S. by demonstrating their positive contributions to the country.
While all NIW applicants and employers will benefit, startup founders and entrepreneurs will specifically benefit from this new law.
In addition, this decision nicely lines up as the next steps for applicants already in the U.S. under the new Entrepreneurial Parole or startup visa alternative — the final rules for which are imminent.
This decision also is a great pathway for those who fall short of satisfying other difficult categories to get a green card. It is also likely a great path for people in the country on a Treaty Investor Visa (E-2 visas) who have long been hoping for a green card option.
Unfortunately, this decision still does not solve the problem of long wait times that citizens of India and China face. The NIW falls into the category that does have long waiting times for these countries.
But Matter of Dhansar opens the door, allowing talented people to apply for permanent residency in the U.S. by demonstrating their positive contributions to the country based on up-to-date, achievable measures.
Oh, and you were probably wondering: The new administration will not be able to easily undo this change, since it’s not an Executive Action. Only a new law from Congress or a new case can overturn it.
So let’s celebrate the new year with the hope that at least one part of immigration law will allow talented and innovative immigrant entrepreneurs to truly make a difference to our nation.
