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Did The National Interest Waiver Just Get Easier?

Last week we provided an article on updates to the adjudication of NIW cases. Today we highlight how this new guidance will help investors who apply for NIW petitions. It is important that investors that employ US workers appear to have an advantage now in these cases.

The below paragraphs are from the article “Did The National Interest Waiver Just Get Easier?” written by Peter Rees:

Finally, the updates seek to open the door wider for entrepreneurs. While the AAO had attempted this with the Dhanasar framework, AAO adjudications since suggest entrepreneurs continue to find the standard extremely challenging. In addition to providing helpful examples of the types of evidence entrepreneurs may submit, the manual now contains the following language:

For example, in the case of an entrepreneur, where the person is self-employed in a manner that generally does not adversely affect U.S. workers, or where the petitioner establishes or owns a business that provides jobs for U.S. workers, there may be little benefit from the labor certification.

Until now, the value of an entrepreneurial endeavor has generally been measured by its economic impact and/or potential for job creation. With this comment, USCIS suggests that self-employed entrepreneurs who are doing no harm to the U.S. labor market should be looked upon favorably – at least in the balancing test. While job creation and economic impact will remain the most important factors for NIW entrepreneurs, this language raises an additional consideration some petitioners may be able to take advantage of.

It remains to be seen when and how the January 21 policy manual updates impact NIW adjudications. Nonetheless, the manual now provides advanced STEM degree holders and entrepreneurs with a clearer roadmap to the NIW, and perhaps even a couple of shortcuts.

Provided by:

David Swaim
David Swaim & Associates, P.C.