NIW for entrepreneurs: when your endeavor holds up without an employer

At first glance, the National Interest Waiver looks like a perfect fit for entrepreneurs: no employer has to sponsor you, and there is no investment of a legally fixed amount. Look closer and it asks for more than a good business idea. USCIS has a dedicated section for founders in its Policy Manual, and it opens by stating that not every entrepreneur qualifies. This guide shows where the hurdles are and which evidence the agency explicitly names.

Most green cards need someone to sign for you: an employer, a relative, an investment project. The EB-2 NIW is one of the exceptions, which makes it especially interesting for entrepreneurs from Europe. You can file the petition yourself, even if you run your own business or plan to start one. What you need to show is set out in a dedicated section of the USCIS Policy Manual. This guide walks you through it step by step.

1Why the Dhanasar test was built for founders too

Until the end of 2016, USCIS assessed the National Interest Waiver under a standard dating from 1998. In Matter of Dhanasar, the Administrative Appeals Office vacated it, with a remarkable reason: the old test had proven particularly ill-suited to judging petitions from self-employed people such as entrepreneurs. The earlier decision had already conceded that some occupations are essentially self-employed, with no employer who could apply for a labor certification. Yet it never changed the test.

The new standard addresses this situation directly. In the third prong, Dhanasar gives the example that an entrepreneur or a self-employed inventor pursuing an endeavor alone may find it impractical to secure a job offer from a US employer. Since 2022, the USCIS Policy Manual has had a dedicated section for entrepreneurs. It covers entrepreneurs who pursue their endeavor through a US company in which they hold or will hold an ownership interest and play an active, central role. For how the three prongs work in general, see the guide to the Dhanasar test.

2The first hurdle: is your occupation a profession?

Before the Dhanasar test, USCIS checks whether you fit the EB-2 category. For degree holders, the way in is the advanced degree: a degree above a bachelor's, or a bachelor's plus five years of progressive experience in the field. On top of that comes a condition that trips up entrepreneurs more often than others. The occupation through which you carry out your endeavor must be a profession, meaning one where a bachelor's degree is the minimum entry requirement. USCIS decides case by case whether this applies to the occupation behind your endeavor, and it explicitly includes entrepreneurial endeavors.

The agency's best-known example comes straight from startup life: an engineer with a PhD who wants to open a bakery will struggle to qualify as an advanced degree professional. The degree is an advanced degree, but baking does not require a bachelor's, and the occupation behind the endeavor is what counts. An older precedent decision, Matter of Caron International, adds that general management occupations are normally not considered occupations requiring a specific degree. A manager only counts as a professional if qualified for, and intending to work in, a professional occupation. "Managing director" on its own is therefore a weak basis. "Engineer who, as a founder, brings a manufacturing technology to market" is a stronger one.

If you don't have a suitable degree, consider the second route: exceptional ability in business, meaning expertise significantly above what is ordinarily encountered in business. You prove it with at least three of six criteria, such as ten years of full-time experience, a salary or remuneration that demonstrates the ability, or recognition by peers, government bodies, or professional or business organizations. For an NIW, this ability must be directly tied to the endeavor. The details on both routes are in the NIW requirements.

3What USCIS does not accept from entrepreneurs

The Policy Manual's section on entrepreneurs opens with a warning. Not every entrepreneur qualifies for a National Interest Waiver. Broad claims about general economic benefit and the potential to create jobs do not establish eligibility. A startup petition should show in detail how this specific endeavor serves the national interest.

The agency gives three examples worth knowing. Starting a consulting firm for people who work, or want to work, in a nationally important occupation does not by itself show national importance. Opening a car dealership gains nothing from evidence of how important the auto trade is overall. And someone who has only worked in banking as a teller or customer service representative may, in the agency's view, not be well positioned to build a consultancy advising banks nationwide on customer relations. General experience in a field is not enough to launch a consultancy in it.

A fourth point concerns your company itself: ownership of a business is relevant to the second prong, but under the Policy Manual it rarely establishes eligibility on its own. USCIS weighs all the evidence together, including education, experience and skills. A registered company with you as owner is a start, not proof.

4The evidence USCIS names for founders

For entrepreneurs, the Policy Manual lists evidence that can be submitted in addition to the general documentation. It should back up your business plan and can support all three prongs. The table at the end of this section sums it up. Three items deserve a closer look.

Investment. An investment, a binding commitment or other evidence that an outside investor intends to invest in your company can independently confirm that your endeavor has merit or that you are well positioned. The money can come from angel investors or venture capital firms. USCIS sets no minimum amount; it asks what amount is appropriate for your endeavor, since different endeavors need different levels of capital.

Incubators and accelerators. The agency may treat admission to such a program as validation of your plan or your track record. You can include evidence of the program's own track record so the officer can judge how much your admission means.

Revenue and jobs. Growth in revenue, in US jobs or both, along with your role in it, can demonstrate the merit of the endeavor and how well positioned you are. With a regional angle, it can also support national importance, for example when the company is located in an economically depressed area or the number of jobs is significant relative to the region's population and economy.

Then there are letters from third parties. USCIS recognizes that entrepreneurs rarely go through the peer review common in academia, but that their plans, products and technologies are vetted by investors, distributors or industry experts. For how to make such letters count, see the guide to recommendation letters for the NIW.

5You don't have to prove success, but you do have to prove achievement

One sentence from Matter of Dhanasar, quoted word for word in the Policy Manual's section on entrepreneurs, takes a big worry off founders' shoulders: many innovations and entrepreneurial ventures fail, in whole or in part, despite a smart plan and competent execution. So you don't have to prove that your venture is more likely than not to succeed by the usual business metrics. If you can show that anyway, USCIS counts it in your favor.

The other half of that sentence matters just as much. Claims without evidence don't meet the burden of proof. USCIS gives positive weight to evidence of your past entrepreneurial success and to evidence supporting your projections for future work. A strong petition shows how your track record translates into a plan, which steps you have already taken and how the plan ties into your background and expertise. Evidence on market size and market share, jobs and revenue growth is welcome, and other metrics can be just as important.

USCIS also recognizes that entrepreneurs rarely follow a straight career path and that there is no required form for a business. Moving between a corporation, your own company and investments is no blemish. It just has to lead to an endeavor you can document. How to frame that endeavor is covered in the guide to the proposed endeavor and business plan.

6The third prong for the self-employed

Under the third prong, USCIS weighs whether, on balance, it benefits the US to waive the job offer and labor certification. Labor certification is meant to ensure that foreign workers don't harm the opportunities, wages and working conditions of American workers. For entrepreneurs, the Policy Manual states: if someone is self-employed in a way that generally does not adversely affect American workers, or founds or owns a business that provides jobs for American workers, labor certification may offer little benefit.

The general factors of the third prong also count: whether it would be impractical to secure a job offer and labor certification, whether the US benefits from your contribution even if American workers are available, whether your endeavor has the potential for significant economic impact, for example by revitalizing an area, and whether it can create jobs. A labor shortage in your occupation, on the other hand, does not carry this prong on its own.

7Your US company as part of the petition

Many founders pursue their endeavor through their own US company. The Policy Manual describes exactly this case: a US-based company in which you hold or will hold an ownership interest, which you may have founded or co-founded, and in which you play an active, central role, shown for example by your appointment as an officer. That role carries evidentiary weight for the second prong. A company that actually operates in the US, with premises, customers and employees, provides more evidence than a shell. How we set up US companies is explained on our US company formation page.

With the NIW, anyone can file the petition. Under the regulations you can file it yourself, or someone else can file for you, including your own company. That has two consequences worth knowing. The Asylum Program Fee is $300 for self-petitioners; if your company files, it is $300 if it employs no more than 25 full-time equivalents in the US, including affiliates, and $600 otherwise. And in employment-based cases, USCIS requires the Affidavit of Support (the financial support undertaking on Form I-864) when a relative who is a US citizen or permanent resident files the petition or owns at least 5 percent of the filing company. If you file the petition yourself, you avoid both issues. All fees are listed in the guide to NIW costs.

One thing employers usually have to show falls away: under the regulations, the requirement to prove the employer's ability to pay the offered wage applies to petitions that require a job offer. The NIW is precisely the waiver of that job offer. How the route through your own company compares with the EB-1C and PERM alternatives is covered in the guide Green card through your own US company.

8The NIW alongside the E-2, L-1 and EB-5

The NIW is a green card, not a temporary visa. So for entrepreneurs it rarely stands alone; it runs alongside a visa they use to build the business while the petition is pending. If you run a company back home that can transfer you, you come to the US on the L-1. If you don't have such a company and invest in your own US business, the E-2 investor visa is your route. Switching from the E-2 to a green card has its own rules, explained in the guide from the E-2 to a green card.

The EB-5 is the green card for investors, with an amount set by law. The NIW requires no such amount, but it does require an endeavor that carries all three prongs. For many founders, the decision is therefore not which route to take but in what order: which visa now, which green card next. For an overview of every route for entrepreneurs, see Green card for entrepreneurs.

In short

• Matter of Dhanasar expressly replaced the old NIW standard partly because it was a poor fit for the self-employed and founders.
• Before the test comes the EB-2 basis. The occupation behind your endeavor must be a profession; general management roles normally are not. The alternative is exceptional ability in business.
• General statements about jobs and economic benefit aren't enough, and neither is the importance of your industry.
• USCIS names concrete evidence: ownership and role, third-party investment, accelerators, grants, intellectual property, press coverage, revenue and jobs, letters from third parties.
• You don't have to prove success, but you do have to document what you have already achieved and what your plan rests on.

How we help you

• Visa RoadmapIn writing: which visa fits you and your family, prepared with the immigration attorney on the firm's team.
• Visa Roadmap for Company FormationFormation and visa in one plan, so the company carries the visa.
• Visa and Green Card ConsultationWhich route to the USA fits you, settled in one conversation.
• US Company FormationLLC, Inc or LP in Delaware, Florida, California, New York, Texas or Wyoming.