An entrepreneur who develops or expands a business in the United States may qualify for an EB-2 National Interest Waiver (NIW). The NIW permits an eligible person to file an immigrant petition without a sponsoring employer and without PERM labor certification. However, the existence of a company, ownership of a business, or a plan to hire US workers does not itself establish NIW eligibility.
How an entrepreneur qualifies for EB-2 NIW
There are two separate legal questions. First, the entrepreneur must qualify for the underlying EB-2 classification as an advanced degree professional or a person of exceptional ability. Second, USCIS must find that the petitioner merits a national interest waiver. The controlling framework comes from Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), and USCIS’s current Policy Manual guidance.
- Substantial merit and national importance: The specific proposed endeavor must possess substantial merit and national importance. Merit can arise in business, technology, health care, education, energy, and other fields. National importance requires evidence of the proposed endeavor’s prospective impact, not simply assertions that the industry is important.
- Well positioned to advance the endeavor: The petitioner must present credible evidence that the business leader can carry out the stated plan, including relevant experience, accomplishments, progress, relationships, financing, or other concrete support.
- Balance favors waiving the job offer and labor certification: USCIS considers whether, on balance, the United States would benefit from dispensing with these requirements in the particular circumstances.
This is not the former test that required an endeavor to be geographically national in scope or measured the person’s value against a similarly qualified US worker. Those formulations were superseded by Dhanasar.
What makes an entrepreneur NIW case persuasive?
The business plan should explain precisely what the enterprise will do, whom it will serve, why the endeavor matters, and how the petitioner will make it happen. Useful documentation may include business registration and ownership records, an operating history, contracts, customer commitments, funding, independently corroborated projections, technical or commercial accomplishments, and credible evidence of demand. Letters from knowledgeable customers, partners, investors, or government organizations can help when they describe specific facts rather than offer generic praise.
Evidence should tie claimed national importance to the proposed endeavor. A local business may have an endeavor with national importance, but its normal commercial success or intended job creation alone is not enough. USCIS’s January 2025 policy update expressly cautions that broad economic benefit assertions do not establish eligibility for every entrepreneur.
Does the business need to create jobs?
Job creation may support a petition when it is substantiated and relevant to the overall endeavor, but there is no automatic NIW approval based on the number of employees or an investment amount. Similarly, a business owner need not win a comparison with a hypothetical US worker; that is not a separate Dhanasar requirement. The question is whether the full record meets the EB-2 threshold and all three NIW prongs.
Immigrant petition versus a green card
An NIW petition is generally filed on Form I-140. An approved I-140 does not by itself grant permanent residence, lawful nonimmigrant status, or work authorization. The person must also be eligible to file Form I-485 in the United States or complete immigrant visa processing abroad, with a visa number available under the applicable priority date and country of chargeability. Existing status, unlawful presence, admissibility, and travel plans require separate evaluation.
Entrepreneurs considering an E-2 treaty investor visa should review the distinct transition issues discussed in our E-2 Visa to Green Card article. Being eligible for an E-2 visa does not automatically establish eligibility for an NIW, and neither category substitutes for the other’s requirements.
Our experience with business immigration
Messersmith Law Firm has represented entrepreneurs, business leaders, and employment based immigration applicants. We evaluate whether an owner’s actual record, proposed endeavor, and supporting evidence can satisfy the required legal standards rather than relying on business ownership alone.
Related firm resource: National Interest Waiver representation.
Primary sources: USCIS Policy Manual, Volume 6, Part F, Chapter 5; USCIS January 2025 NIW policy update; Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).