Two years ago, in my article titled, “What President Obama’s immigration announcement means for tech companies and entrepreneurs,” I discussed the president’s executive actions on immigration that he’d just announced at the time. The final piece of those executive actions has lead to an exciting new development that a new administration won’t be able to dismantle — at least not so easily.
On Dec. 27, the U.S. Citizenship and Immigration Services (USCIS) created a new set of standards for the little-used program known as the National Interest Waiver (NIW), a green card option for exceptional foreign immigrants whose work is considered of national interest. And the revamped NIW has opened up a whole new avenue for some foreign entrepreneurs to also gain legal permanent status.
The USCIS’ Administrative Appeals Office (AAO) issued a precedent decision in a case known as Matter of Dhansar. The decision is the logical next step to the Obama Administration’s new Entrepreneurial Parole program that will soon begin admitting foreign inventors and founders of startup companies into the U.S. on a temporary, case-by-case basis.
Taken together, these policy changes are a huge development for foreign entrepreneurs who currently have few options to either enter the U.S. to tend to their companies or remain permanently to watch those companies grow.
While other countries, including neighboring Canada, have been moving frantically to welcome immigrants and their business-generating ideas, efforts by Congress to create a startup visa, over the last seven years, have all failed.
Entrepreneurial Parole and a revamped NIW, that seeks to meet the contemporary needs of business startup and development, are currently immigrant entrepreneurs’ best hope.
Any immigration attorney who has worked to obtain NIW on a client’s behalf knows how difficult a standard it is to meet; for entrepreneurs, it’s almost impossible.
There’s no statutory definition of “national interest” and USCIS has relied on an AAO decision, from the 1998 Matter of New York State Department of Transportation case, for guidance in deciding such cases.
The New York case sets forth a three-prong test, requiring that the area of employment be of “substantial intrinsic merit;” proposed benefit from the person’s work be national in scope and that applicants demonstrate that the national interest would be harmed if the position had to open for recruitment.
Under the new Dhansar standards, the overall focus shifts to the talent and value the foreign entrepreneur brings to the table, taking into account the person’s skills, experience and record of past success and future potential.
There’s recognition of the kind of impact these inventors can have on the economy and clarifies that the “national in scope” test can allow for economic development in depressed areas of local communities.
Additionally, unlike the previous law, in which we had to show that losing the applicant would harm the U.S., we can now show that that person will be beneficial to the U.S.
USCIS will evaluate each applicant’s background and work impact to see if it will be “impractical” to get a job offer and whether it is “sufficiently urgent” to waive evidence of recruitment efforts to fill the position. The new decision is much clearer and provides concrete examples of how the standards can be applied in individual cases.
It is especially beneficial to startup founders and entrepreneurs, particularly those who will enter the U.S. in coming months under the new Entrepreneurial Parole.
The decision will also help those who fall short of satisfying the criteria for an EB1 visa, which is available to outstanding researchers or professors as well as E2 investor visa holders who have long been hoping for a green-card option.
Still, it is important to remember that immigration cases are never easy and we will continue to have to meet the high standards of NIW cases.
But at a time when looming immigration news doesn’t fill us with much hope, this change is a major boost.
And the winners here aren’t just the entrepreneur, but the economy and those Americans who will benefit from the jobs this will generate.