Some of the highlights over the past year include:
More than 400 USCIS employment-based immigration officers trained on startup businesses and the environment for early-stage innovation; and
More than 100 USCIS officers receiving additional specialized training to handle entrepreneur and startup cases.
Agency focuses on fully realizing the job-creating potential of current immigration law
Released October 11, 2011
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas joined the President’s Council on Jobs and Competitiveness in Pittsburgh to announce “Entrepreneurs in Residence.” This new innovative initiative will utilize industry expertise to strengthen USCIS policies and practices surrounding immigrant investors, entrepreneurs and workers with specialized skills, knowledge, or abilities. Mayorkas announced the initiative at the Jobs Council’s High Growth Entrepreneurship Listening and Action Session at AlphaLab in Pittsburgh before the Council’s quarterly meeting with President Obama.
“This initiative creates additional opportunities for USCIS to gain insights in areas critical to economic growth,” said Director Mayorkas. “The introduction of expert views from the private and public sector will help us to ensure that our policies and processes fully realize the immigration law’s potential to create and protect American jobs.”
USCIS will launch the “Entrepreneurs in Residence” initiative with a series of informational summits with industry leaders to gather high-level strategic input. Informed by the summits, the agency will stand up a tactical team comprised of entrepreneurs and experts, working with USCIS personnel, to design and implement effective solutions. This initiative will strengthen USCIS’s collaboration with industries, at the policy, training, and officer level, while complying with all current Federal statutes and regulations.
The initiative builds upon USCIS’s August announcement of efforts to promote startup enterprises and spur job creation, including enhancements to the EB-5 immigrant investor visa program. Since August, USCIS is:
- Conducting a review of the EB-5 process
- Working with business analysts to enhance the EB-5 adjudication process
- Implementing direct access for EB-5 Regional Center applicants to reach adjudicators quickly; and
- Launching new specialized training modules for USCIS officers on the EB-2 visa classification and L-1B nonimmigrant intra-company transferees.
Here is the relevant text:
Q11. Is there a “national interest waiver” (NIW)? And if so, what is it? Can an entrepreneur qualify for a NIW?
A11. Yes. A NIW exempts the petitioner from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor. Entrepreneurs, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.
Q12. If an entrepreneur wants to file for a NIW, does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability?
A12. Yes. The entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.
Q13. If an entrepreneur wants to file for a NIW must he or she have an actual employer in the United States?
A13. No. Pursuant to INA 203(b)(2)(B), an entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for a NIW. In other words, an entrepreneur may be able to petition for him or herself and fill the role of both the petitioner and beneficiary. The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States.
Q14. Is there a definition of “national interest”?
A14. The term “national interest” is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history. However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).
While NYSDOT does not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the NIW under limited circumstances. Footnote 5 in the decision states:
“The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…[T]he petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field.”
NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement.
Q15. What are the three prongs laid out in the NYSDOT decision?
1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.
Stated another way, the petitioner, whether the U.S. employer or the NIW applicant, must establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
Q16. How does the first prong of NYSDOT relate to entrepreneurs?
A16. Under the first prong of the NYSDOT test, the entrepreneur must seek employment in an area that has substantial intrinsic merit. It is important for the entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications. In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit.
Q17. How does the second prong of NYSDOT relate to entrepreneurs?
A17. The second prong of the NYSDOT test requires that the entrepreneur demonstrate that the proposed benefit to be provided will be national in scope. For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact. As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.
Q18. How does the third prong of NYSDOT relate to entrepreneurs?
A18. NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States. An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. NYSDOT’s third prong requires that the entrepreneur “present a significant benefit to the field of endeavor.” The field should be the same as that identified in prong one of the analysis and the entrepreneur must document how the entrepreneurial enterprise will benefit that field.
“In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”
The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.
Michael Ryvin, Partner
Ryvin Wallace Group