NIW: A real immigration option for international entrepreneurs

By Kaitlyn Garcia, J.D. | Immigration Attorney | Houston, Texas

There are close to zero immigrant options for foreign entrepreneurs seeking to start businesses here in the U.S. In fact, a specific visa that is uniquely designated for an immigrant entrepreneur simply does not exist.

We need to ask ourselves, why though?  There is no doubt entrepreneurship is highly beneficial to the U.S. economy. However, as highlighted by the American Immigration Council (AIC), studies show that with a lack of visa options suited for foreign entrepreneurs, America is no longer the only go to country for foreign entrepreneurs. With no options, these visionaries are diverted away from the U.S. to build their business in other countries with better programs and incentives, causing the U.S. to lose out on new business, job creation, tax revenue, and innovation that these entrepreneurs could be generating for the U.S. economy.

Current U.S. Immigrant pathways for foreign entrepreneurs

Today, the only U.S. immigrant pathways (meaning green card pathways) open to a foreign entrepreneur are limited, uncertain, and very indirect in nature. These pathways include the EB-5 immigrant investor visa and the EB-2 visa filed with a National Interest Waiver.

EB-5 immigrant investor visa

The EB-5 immigrant investor visa is an option for entrepreneurs. However, although EB-5 is a permanent immigrant option, EB-5 can be very difficult for some individuals to obtain. Under the EB-5 investor visa program, a foreign entrepreneur must generally invest $1 million to start-up their “enterprise,” along with other special requirements.

EB-2 National Interest Waiver

The EB-2 immigrant visa can be self-petitioned if filed with something called a National Interest Waiver ("NIW"). This means that the qualified EB-2 NIW applicant does not need an employer to file for them because a job offer and PERM labor certification is not required.

Traditionally, the NIW was not a good option for foreign entrepreneurs wishing to set up their business in the U.S. Under the old NIW requirements (1998 NYSDOT test), USCIS looked almost exclusively at an applicant’s past history of achievements when granting the EB-2 visa. However, in late 2016, a court decision called Matter of Dhanasar changed the game. The court trashed the old NIW test and created a brand new test. And, for the first time, the new NIW test valued entrepreneurs. The new test considers not only past achievements of an NIW applicant but future success too.

Considering the possible future success of an NIW's proposed endeavor is highly favorable to entrepreneurs that have significant merit in their start-up plans. In fact, the Dhanasar court specifically addressed foreign entrepreneurs and wanted to create a way to grant an EB-2 visa to individuals who want to immigrate to the U.S. to start their businesses. The Court stated that the old NIW test was “particularly ill-suited for USCIS to evaluate petitions from self-employed individuals, such as entrepreneurs.”

What all this means is that qualified foreign entrepreneurs could indeed be considered to be in the “National Interest of the U.S.”  and be granted a self-petitioning EB-2 immigrant visa. 

Not many foreign nationals are aware of the real and tangible possibilities that an NIW might give them when considering starting-up their business plans in the U.S. Further to note, non-like the EB-5 investor program, there is no minimum amount of capital that a person must invest in order to apply for the NIW. This is not to say that proper documentation of a start-up plan is not required in an entrepreneur's NIW application. However, with proper evidence of an entrepreneur's U.S. start-up plan, the EB-2 NIW does become a viable immigrant option for the foreign entrepreneur.

Noteworthy point on the International Entrepreneur Rule: future uncertain and only a temporary option

Note that although the Obama administration put the International Entrepreneur Rule (“IER”) in the works, the IER is not a permanent immigrant option and may soon disappear. First off, it is only a parole rule that only temporarily allows a foreign national to enter the U.S. to advance their start-up companies. Secondly, the IER is highly shaky as the current administration seeks to dismantle the rule. As of date, we do have a federal court decision that has officially rejected the delay of the rule and mandated that DHS accept IER applications. Some guidance on how to submit IER applications is made available by USCIS. Those individuals seeking to apply for temporary U.S. entrance to start up their companies under the rule, should keep in mind the uncertainty surrounding the rule as a viable option for their U.S. entrepreneurship.

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Are you a foreign entrepreneur seeking to start your company in the U.S.?  Let us know your plans and how we can help you reach your U.S. start-up goals.