EB-2 National Interest Waiver Green Card For Startup Founders And Engineers

November 16, 2022 by Piotr Messerszmidt

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America, as the land of opportunities, attracts lots of immigrants from around the world. There are many reasons they choose the US as their destination. It may be to seek a better-paid job, a higher standard of living, peace or tolerance. Some entrepreneurs see America as a great place to fund a new business. As they come and start building their new lives, they look for a chance to make their stay permanent. They search for visa options and to obtain a Green Card. There are various ways to do that – via relatives, employer or simply by being selected in the Green Card lottery. 

Let’s start from the beginning. What is EB-2 NIW?

It is an immigrant visa that is frequently known under the name EB2 National Interest Waiver (NIW). It is designed for talents who would like to move to the US and become permanent residents. EB-2 NIW is a self-sponsored type of Green Card, however, we need to prove that you are going to bring a national interest to the US. That is why one of the most important parts of the NIW is your future project. Generally speaking, startup founders are a great fit for this category because most of them are solving big issues and contributing to the US.

Who qualifies for the EB-2 NIW criteria then?

How to meet the NIW requirements? Of course, Green Card applicants must meet certain criteria, like in all visa options. The category of this work authorization is constructed for individuals who hold an advanced degree or possess exceptional ability in the sciences, arts or business.

Foreign nationals holding an advanced degree, meaning a Master’s degree, a Ph.D., or an equivalent within the field you intend to work in. It can also be a bachelor’s degree with 5 years’ of progressive work experience in the same field from professional or business organizations. The applicant must present an official academic record showing that they have a U.S. advanced degree or a foreign equivalent degree, or an official academic record confirming that they have a U.S. baccalaureate degree or a foreign equivalent degree. Additionally, letters from current or previous employers evidencing at least 5 years of progressive post-baccalaureate work experience in the specialty are required as per USCIS. In case when a doctoral degree is customarily required, a United States doctorate or foreign equivalent degree is a must.

The other way for foreign entrepreneurs to obtain an EB-2 NIW Green Card is to prove an exceptional ability. U.S. Citizenship and Immigration Services indicates that they may show some diploma/degree or other award related to their exceptional ability in a particular field from university or college, have national or international acclaim, license enabling them to practice the profession, proof of achievements, and significant contributions to the field, being a member of a professional organization where there is a special process of selection, documents from employers (current or previous) or other comparable evidence of their significant contributions to the industry given by the business, professional organization, government units or peers. It can also be the evidence of remuneration for the work which demonstrates exceptional ability. It is worth highlighting that the expertise needs to be higher than commonly found in arts, business, or sciences.

What type of evidence can an entrepreneur use to qualify for a National Interest Waiver?

As mentioned before, the biggest benefit of EB2 NIW is that entrepreneurs can avoid the labor certification process and can self-petition, so there is no need for the employer to be their sponsor. In order to do that, they need to prove they meet the below criteria. According to USCIS these are the following:

1.    Their offered undertaking is of substantial merit and national importance.

In other words, entrepreneurs meet the criteria by showing that their undertaking has a substantial national impact for the future of business, science, entrepreneurialism, culture, health or education. Simply, how the applicants will bring benefit to the U.S when being granted a Green Card. Think of what America gains from their exceptional expertise. Proper documentation is needed to prove this, which must describe why the field of expertise is relevant, and what are benefits and practical appliances. A letter from the founder, the company, or in some cases, the employer explaining the job can evidence that. As well as experts from the same field can demonstrate the importance of the applicant’s work by drafting recommendation letters. Another way to evidence national interest is through articles in the media describing the individual and their company’s work, contracts, agreements or licenses showing the scope and impact.

2.    The foreign entrepreneur is well-positioned to advance the proposed endeavor. 

This simply means that there are factors that would add to future success. Entrepreneurs must show some compelling evidence that the startup is able to succeed, like a business plan. Also, the founder can show previous achievements, evidence of possessing the proper skills needed for this particular endeavor, education, and the success of past projects that are similar. This should not be challenging for entrepreneurs. It is also recommended to show that there is an interest and demand in the market for the services offered by new startups, which can be done by providing recommendation letters from business partners, customers, and government units. To sum up, all evidence proving that the goal is achievable would work for this criterion.

3.    It would be beneficial to the United States to waive the job offer and labor certification.

Last but not least is the criterion to prove that your undertaking will be of interest of the national economy, so that the applicant can obtain NIW and no labour certification will be required, and they will be able to work in the United States. This can be achieved by showing the importance of work and by demonstrating that the new endeavor will generate new jobs for Americans. A business plan with an employment agenda could be handy here. What is more, again, the applicant-entrepreneur must demonstrate that there is no better-qualified person to do the job by presenting evidence of past success in similar projects, which helps to build the skills needed in the current undertaking to be a great success. Articles, publications, licenses, and grants recognizing the founder’s job may be included in this point. 

How can engineers qualify for a National Interest Waiver?

The same applies to engineers, the EB-2 NIW can be applied to them as they can easily prove that their work is specific to the field. They build bridges, buildings, and heating systems, design chemical plants, work on integrating, and managing complex systems, and have their input into the aircraft and spacecraft. All these accomplishments fall under the  criteria of substantial merit. This way, they add to the interest of the U.S., and their work is extremely important. It won’t be difficult to prove that they are well-positioned, as they can present the work they have already accomplished, which can be similar to the one offered in their new home. It would be extremely helpful to also add awards or public recognitions. The last requirement of being granted a waiver can be done based on how unique and extraordinary the job they offer  is for the country. Needless to say, it is in the country’s interest to be better than any competitor, so new developments across various fields can help to achieve that.

Should Founders on an O-1 visa file for EB-2 NIW as opposed to the EB-1?

If you are a start-up founder and want to increase your chance of getting a Green Card, the best possible way is to do it via EB-2 NIW. This process is much easier than getting an EB-1A Green Card due to the fact that EB-1A has a significantly higher standard of requirements than EB-2 NIW. However, obtaining an EB-2 NIW Green Card can be an extremely long process for Indian or Chinese nationals due to the priority dates for the I-485 Stage. Although they can obtain approval for the I-140 Stage the same way as any other nationality, they will have to wait for many years before being able to apply for the Adjustment of Status. This means that the process will take a long time to be completed, and this is the reason why we would, very often, consider EB-1A for our customers as the fastest way to obtain permanent residency 

On top of this, a great disadvantage of EB-2 NIW is the lack of Premium Processing for I-140 Stage. Although USCIS is implementing this service in stages, current I-140 filings will need to wait 8-12 months to be processed, as opposed to EB-1A petitions, in which Premium Processing is available and ensures a decision in 15-calendar days.  PassRight can help you to choose the best option to achieve your desired goal.

Conclusion

To sum up, EB2 NIW is definitely a great option for engineers or startup founders who would like to work and live permanently in the U.S. For those who consider looking at Green Card applications, PassRight can demystify complicated terms, immigration law and the process step by step. Everyone has a different story and it is our immigration law professionals who can help you go through the process easily. It is enough that entrepreneurs need to take care of their undertakings and start a new life. We can do the rest for you.

FAQ

  • How long does it take to get an EB-2 NIW for startup founders and engineers?

    As per the USCIS, the processing times for NIW petition have been changed to premium as of 24th of May 2022. The immigration law focuses on some applicants with pending I-140 petitions, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. It may take much less time to receive employment-based Green Cards for individuals with advanced degrees or exceptional ability seeking a national interest waiver (NIW). All they need to do is to file a Premium Processing upgrade by filing Form I-907, Request for Premium Processing Service, which can be found on the website as well. Adding a premium processing option is a great help for entrepreneurs and startup companies. If there is no premium processing, the time to get EB-2 approved may vary. The best option is to follow that on the website of USCIS
  • Can a founder/engineer apply for EB-2 NIW by himself?

    Yes, a founder/engineer can apply for an employment-based National Interest Waiver Green Card by filing the I-140 petition with the U.S. Citizenship and Immigration Services, providing necessary documentation and evidence of their qualifications. As mentioned above, there is no need for the employer-sponsor to be included in the process in this case, which gives a great benefit of simplifying the steps. It is worth mentioning that under the condition that the priority date for the EB-2 category together with the country of birth is current, Form I-140, and Form I-485, the Adjustment of Status, can be filed simultaneously, although this is not a practice we would recommend. We would suggest filing the I-140 petition first. Only when the I-140 is approved, and the priority date is current, Adjustment of Status can be filed.
  • Does the EB-2 NIW give work authorization?

    It is the first step of applying for it. It gives you the right to apply for the Adjustment of Status (and employment authorization) after the approval. That’s why to be sure to have work authorization, please contact PassRight immigration specialist, who can present you with your options.