Foreign Entrepreneurs May Have a New Hope

National Interest Waiver is a program which allows eligible foreigners to petition for Permanent Residency in the United States without having to undergo the Labor Certification process or having an employer who otherwise would have needed to petition for him or her. In an attempt to boost employment opportunities and economic recovery, the United States Citizenship and Immigration Services have extended the availability of the National Interest Waiver to eligible foreign entrepreneurs.

Prior to this change, foreign entrepreneurs were limited to certain eligibility requirements. For example, the beneficiary would have to have and advanced degree, such as masters or a doctorate, or have extraordinary abilities and a permanent job offer from a valid U.S. employer. In addition to these requirements, the employer needs to file a labor certification application stating the shortage of qualified U.S. workers.

The drawback with the former eligibility requirements is ironic. An entrepreneur, by definition, is someone who starts a business and thus, not to be employed by another. However, the eligibility extension will now allow entrepreneurs to qualify for the National Interest Waiver if the Secretary of Homeland Security deems the waiver to be of national interest.

As for the state of New York, there was a decision that established a three-prong test which governs the granting of a National Interest Waiver. This test was then adopted by the United States Citizen and Immigration Services for National Interest Waiver applicants.

The three prongs require:

1.     The industry or field in which the alien wishes to work should be a field of “substantial intrinsic merit”.
2.     The benefit of the grant should extend nationally.
3.     The national interest would be negatively impacted if a labor certification was required for the applicant.

When attempting to meet the first requirement, it is important to focus on the economic benefit to the nation. The “intrinsic merit” requirement can be met if there is an introduction of new income and products or services of economic value. To fulfill the second requirement, the applicant should focus on job creation. The creation of local jobs will naturally have benefits that extend nationally. The third requirement, however, is a bit trickier. In order to be exempt from the labor certification, the applicant should demonstrate that the national benefit of the waiver will greatly surpass the benefit of giving the job to a U.S. worker. The alien should provide achievements greater than what already has been contributed to the field. To do this, the applicant should show significant past achievements. Furthermore, the applicant should show that requiring labor certification will negatively impact the creation of jobs and thus, has negative national effects.

Prior achievements can be displayed in a variety of ways. One of the most evident is previous success in business ventures overseas. This shows a demonstrated ability to be successful in business and is likely to continue in the United States. Anything that supports the success of the business should also be included—such as current contracts, the number of employees and the ability to meet proposed business goals. The concentration of the application should still remain on the creation of jobs for U.S. workers.

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