A New Standard for National Interest Waivers : An Entrepreneur's Benefit

What is a National Interest Waiver? 

Under the second preference of employment-based immigrant visa category, a NIW is a waiver of the job offer requirement - and therefore the labor certification - because it is in the "national interest". The waiver is only available for professionals with an advanced degree (such as an Engineer with a masters degree) or those with an exceptional ability in the sciences, arts or business. This would allow an entrepreneur to self petition under the second preference category. 

The New Standard: Matter of Dhanasar 

On December 27, 2016, the AAO issued Matter of Dhanasar which should make it easier for entrepreneurs to qualify for the National Interest Waiver, though its effectiveness will be determined by whether USCIS adjudicators interpret the new standard as intended. The decision overturns a 1998 decision (NYSDOT), and has three parts: 

1) The “foreign national’s proposed endeavor has both substantial merit and national importance”; 

2) The “foreign national is well positioned to advance the proposed endeavor”; and 

3) The United States would benefit “on balance” if the job offer and permanent labor certification requirements are waived. 

If these requirements are met, USCIS may approve the NIW as a matter of discretion. 

The new standard notes that a petitioner's intended work can be in the national interest even when it is limited to a certain geographic location (prong one). Under prong two, it examines the "potential prospective impact" of the foreign national's intended work – as opposed to limiting the consideration primarily to the past achievements as a measure of future benefits often previously used.  The decision recognizes that many endeavors and entrepreneurial pursuits may ultimately fail, "despite an intelligent plan and competent execution". Dhanasar directly rejects that a foreign national must prove they are more likely than not to succeed.  

The new third prong also removes the need for a showing of harm to the national interest if the petitioner is not granted a waiver, or a comparison of US workers in the petitioner's field. This makes the waiver standard much friendlier to entrepreneurs and the self-employed. 

Other Options for Entrepreneurs 

The National Interest Waiver option may benefit entrepreneurs more so than it had done in the past. But what if it does not seem right for you? Many entrepreneurs enter the United States through nonimmigrant E or L-1A visa categories or the EB-5 investor immigrant program. Recent proposals to the EB-5 program mean that the investment minimums are likely set to rise this year, creating a further financial barrier to prospective EB-5 clients. 

USCIS also recently finalised the Entrepreneur Parole Program, though the rule puts many limitations (including funding restrictions) on the entrepreneur.  

 

If you would like to speak to an experienced US Immigration Lawyer about a National Interest Waiver or other entrepreneur visa options, please email us on info@baimmigrationlaw.com. 

 

E-2 Investment Visa FAQs

The E-2 treaty investor visa is one of the most useful and simultaneously complex categories of nonimmigrant visas. Here is a list of the most common questions we receive from clients. These answers are not legal advice but educational in nature and meant to aid those who are attempting to understand whether or not the E-2 visa is right for them. Please contact us for individual, tailored advice for your situation.

 

1. What is substantial investment? 

Substantial investment is defined as an amount that is:

(1)  Substantial in a proportional sense, ... i.e., substantial in relationship to the total cost of either purchasing an established enterprise, or creating the type of enterprise under consideration;

(2)  Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and

(3)  Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.  No set dollar figure constitutes a minimum amount of investment to be considered "substantial" for E-2 visa purposes. [9 FAM 402.9-6(D)]

But what does that mean? And how do you know if you have invested enough to pass the threshold?

Simply put, substantial investment is one of the trickiest points of applying for an E-2. The embassy or consulate will look at many factors in deciding what it means including the type of business started, how many people it plans to support, and where it is located. It will compare this amount with how much of the overall costs the investor has invested. The lower the overall start-up costs needed based on the business, the higher the percentage of funds the investor should seek to commit.

A good US Immigration Lawyer can go through your investments and advise on how to best spend money. To best utilise his or her expertise, I would advise instructing a lawyer early in the process and creating a timeline and game plan for investment. In choosing whom to instruct, it is often worthwhile to hire an attorney with familiarity of the embassy or consulate where you will be applying.

For more on substantial investment, please read our blog post solely on the topic here.

 

2. What makes a business marginal?  

One criterion of an E-2 application is that a business may not be considered marginal. This means that the business must do more than simply provide financially for the investor and his or her family.

To look at whether or not a business is marginal, the E-2 officer will mainly assess two factors - profits and employees. He or she will be looking for the following: whether the investment will expand job opportunities, generate other sources of income, and generate income substantially above what would be considered a living, and that the investor will not work simply as a skilled or unskilled labourer.

If the business is new (as many are), a detailed business plan with a five year projection of profits and employees hired must be included. 

For more on marginality, please see our blog post on it here. 

 

3. Does my business need to be up and running at the time I apply for an E-2 visa? 

Yes. At the time of filing, the company must be real and operating. This means that the business must have all of the applicable local, state and federal licenses.

 

4. Can my spouse and children get visas as well? 

Yes, on an E-2 visa the spouse and minor children (unmarried children under the age of 21) of an E-2 visa holder may also apply for derivative visas. Important for many families, the spouse may also apply for a work permit (EAD) once in the United States. The EAD card generally poses no restrictions on the type of employment.

If you and your spouse are both potential E-2 visa holders, it may serve you well to consider the individual earning potential of each of you before deciding who should apply for the visa. 

 

5. What kind of business can I run with an E-2 visa? 

The E-2 visa is quite flexible when deciding what type of business to run. Both service and sales companies are eligible for E-2 registration.

One limitation to businesses is that it must not be a passive investment, i.e. simply buying property or stocks. It is also worth noting that nonprofit associations are not commercial enterprises so will not qualify for E-2 status.

 

6. How long is the visa good for? 

Upon approval, the visa will be initially granted for anywhere from 1-5 years. For small businesses, the London embassy generally grants an initial approval of 1-2 years.  Extensions are for 5 years at a time. There are currently no limitations on extensions. 

 

 More questions?

It may be that the E-2 visa isn't the right visa for you or your company. For instance, if your company already has substantial trade with the US, you may qualify for an E-1 Treaty Trader visa.

To speak with an experienced US Immigration Lawyer about the E-2 treaty investor visa, please email info@baimmigrationlaw.com or call us on  +44 (0)203 102 7966

Update: EB-5

On September 9th, Representative Bob Goodlatte (R-VA) introduced the American Job Creation and Investment Promtion Reform Act of 2016 (H.R. 5992), which would reauthorize the EB-5 Regional Center Program. H.R. 5992 will be marked up in the House Judiciary Committee today.