The Dhanasar Decision's Impacts on National Interest Waiver Application for Entrepreneurs
What are the Dhanasar case decision's impacts on the EB2 National Interest Waiver Application for foreign entrepreneurs?
The Dhanasar case decision opens the NIW category to entrepreneurs. The decision reviews the history of NIWs and what did and did not work in the past. This decision will make NIW green cards more accessible in general, and specifically for entrepreneurs. Here are the few aspects of the new decision:
1) The case allows using the person’s degrees and experience. This benefits highly educated entrepreneurs.
2) The case allows teaching as evidence. So an entrepreneur who also teaches in his or her field will now get a boost in the NIW category.
3) The benefit to the U.S. interest can be local, such as helping to create jobs in a depressed area or creating a specialized local product. Entrepreneurs can argue the impact of their work on the economy, starting regionally, and then adding national supply chain implications if applicable.
4) Dhanasar decision specifically notes that entrepreneurial work can lead to an NIW petition approval. This has been on the USCIS website for several years, but now it is even clearer. The decision notes that “evidence that the endeavor has significant potential to employ U.S. workers, or has other substantial positive economic effects may well be understood to have national importance.”
5) The decision also notes that the entrepreneurial venture does not need to succeed: “many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed.” The business just needs to be “well positioned to advance the proposed endeavor.” This stresses the importance of a high quality business plan for entrepreneur's NIW petitions.
6) The decision requires an NIW applicant to show that it would be “impractical” to go through the normal labor certification process. The labor certification is the most common form of employer-sponsored Green Card application. But for entrepreneurs, it can be difficult because labor certification requires a full time job offer at a competitive salary, and evidence that the company has the ability to pay that salary.
As always, NIW immigration category is a chance for creativity in showing a foreign national’s talents.