Entrepreneurs can get green cards without $1m/$500K investment

Leon Jeffrey Snaid's Green Cards Legal Blogs

Licensed for 46 years

Attorney in San Diego, CA

The usual path to a green card based on an alien’s occupation requires a U.S. employer to petition for the  alien for a green card. Before the U.S. employer can do so, it is necessary for the employer to prove that there is a shortage of U.S. workers for that job. This process is known as applying for a Labor Certification. 

The exception to this rule allows aliens to petition for themselves and avoid the labor certification process, if they are exceptional in their field and they will benefit the U.S. national interest. In other words, the labor certification requirement is waived, if the alien’s occupation will benefit the national interest of the U.S.A., hence it is known as a “national interest waiver. (NIW)”

An entrepreneur can qualify if the:

 

Entrepreneur will be working in the sciences, arts, or business;

Entrepreneur has exceptional ability in the sciences, arts, or business; and

Entrepreneur will substantially benefit prospectively the national economy,

cultural or educational interests, or welfare of the United States

How does an entrepreneur show that he or she will substantially benefit

prospectively the national economy, cultural or educational interests, or welfare

of the United States?

Entrepreneurs should discuss in their petitions, which element(s) (national economy, cultural or

educational interest, or welfare of the United States) the entrepreneurial enterprise is

claimed to benefit. For example, the educational interests of the United States may

be met by an entrepreneurial enterprise that establishes tutoring instruction learning

centers throughout the United States.

As another example, the entrepreneur could demonstrate that at least one aspect of

the welfare of the United States will be “substantially” better off were the

entrepreneurial enterprise to be located in the United States. It should be noted that

the term “welfare” as used by the statute is a broad concept and could refer to any

number of areas.

NATIONAL INTEREST WAIVER

The term “national interest” is not defined in the statute or the regulations, and

Congress did not specifically define the phrase in the relevant legislative history.

However, USCIS issued a precedent decision concerning NIWs, Matter of New York

State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).

While NYSDOT does not involve an entrepreneur, the decision contemplates that

entrepreneurial or self-employed beneficiaries may qualify for the NIW under

limited circumstances.

NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of

the job offer requirement:

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.

2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.

3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.

Stated another way, the petitioner must establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Entrepreneurs can qualify for EB-2  National Interest WaiversMore on EB-2 National Interest Waiver

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