There are a lot of reasons to consider getting a green card through an EB-2 National Interest Waiver (EB-2 NIW).  With Matter of Dhanasar, it’s a lot easier to get for startup founders in Silicon Valley.

This is a great category for you to consider if you are a startup founder working at a company in which you own equity and you’re frustrated about other green card options.  Perhaps you don’t have enough extraordinary ability to qualify for EB-1A, or you’re a researcher but you don’t work at the right type of organization to qualify for EB-1B.  Maybe you own a foreign startup but you haven’t worked there for a year so you can’t qualify for EB-1C.  Perhaps EB-2 is the right category for you but because you’re on H-1B working for your own company you can’t get through PERM.  Maybe you don’t have enough money to be an EB-5 investor, or no family to sponsor you, or you’ve tried every year but you never got picked in the green card lottery.

If any of these applies to you, but you have a way to benefit the United States through an endeavor with substantial merit which is of national importance, you’re well-positioned to advance your endeavor, and it would be a good idea for the U.S. to let you in to get it done, then you have a path to a green card. Silicon Valley startup founders, this one’s for you:

The EB-2 NIW Green Card

Let’s break it down.  A green card is what you try to obtain when you weren’t born in the U.S. but you want the option of spending the rest of your life here.  There are family-based green cards, the green card lottery, and “EB” stands for “employment-based” green cards.  There are five subcategories of employment-based green cards.  The “second preference” category, EB-2, is for people with outstanding ability or advanced degrees.

So what’s the “NIW” stand for? National Interest Waiver.  What does it waive? PERM.  What is PERM? The labor certification process.  The point is to prove that there are not sufficient able, willing, qualified, and available US workers at the place the foreigner needs to perform the labor in question.

The benefit of the NIW twist to the EB-2 category is with NIW, you get to SKIP the PERM process!  You save time, money and stress.  Possibly years, thousands and thousands of dollars, and unmeasurable strain on your heart and nerves possibly adding back years to your life.

So what changed?

Since 1998, there had been a standard for EB-2 NIWs from the NSDOT case.  It had a lot of problems, especially for entrepreneurs and other self-employed individuals.  NSDOT involved a three-prong test.  First, you had to show that the area of employment has “substantial intrinsic merit,” but this was bad because the word “Intrinsic” added little value and is susceptible to unnecessary confusion.  Second, you had to show that the proposed benefit from the foreign national’s endeavors was national in scope, but “national” was often construed literally and too narrowly in a geographic way.  Third and finally, you had to show that the national interest would be adversely affected if a labor certification (PERM) were required.  There were five different tests for this in the NYSDOT decision alone, which was way too confusing, plus it was often misinterpreted to require evidence about the labor market which has made it too hard for entrepreneurs to pass over this hurdle.

Well, all that has changed.  As of December 27, 2016, there is a new standard for EB-2 NIWs articulated in the case Matter of Dhanasar.  Thank you, twilight hours of the Obama administration!  Dhanasar revamps the NYSDOT three-prong test to fix its blunders and make it easier for entrepreneurs and other self-employed individuals to qualify.  This is a great day for immigration in Silicon Valley.

The New Test

Here’s the new legal standard for EB-2 NIWs: the first prong of Dhanasar is whether the foreign national’s proposed endeavor has both substantial merit and national importance. Examples of substantial merit include the fields of business, entrepreneurialism, science, technology, culture, health, education, pure science, and the furtherance of human knowledge.  Dhanasar clarifies that to consider national importance you need to look at the potential prospective impact and national or global significance of the endeavor, not just geography.

The second prong is whether the particular foreign national is well-positioned to advance the proposed endeavor.  What matters is the foreign national’s education, skills, knowledge, record of success, plan for future and past progress as well as the interests of customers, users, investors, and other relevant entities.  

The third and final prong is whether on balance, it would it be beneficial to the U.S. to waive the requirements of a job offer and thus of a labor certification.  One can consider impracticality of getting a job offer or labor certification, whether the US would still benefit from the foreign national even if there are other qualified Americans who could do the job, and whether the national interest is sufficiently urgent to warrant such action.  This is great for entrepreneurs and self-employed individuals because you no longer need to show harm to national interest or make comparisons against US workers.

If you can show by a preponderance of evidence, the greater weight of the evidence, that you meet all three factors, USCIS can use its discretion to approve an EB-2 NIW green card for you!

A special note if you’re a startup founder from India or China – Yes, you will still have to face the EB-2 backlog from the visa bulletin.  However, if you’re on H-1B, you can get extensions under AC21 while you’re waiting for priority date to become current!

Conclusion: Consider the EB-2 NIW!  Get in touch to learn more and to figure out if you qualify.