Are you a foreign national interested in expanding your restaurant business to the United States? Or do you have a plan to start a new restaurant chain in the United States? One way you can begin to fulfill your American dream is through the EB-2 National Interest Waiver (NIW), an employment-based petition that allows you to self-sponsor and obtain a green card upon approval.
All employment-based green cards are divided into five preference categories, starting with EB-1 (first preference) which accommodates those with extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors and researchers; or multinational managers and executives.
The second category is EB-2: professionals with advanced degrees or individuals with exceptional ability. This is followed by the third preference EB-3 (skilled workers, professionals, and “unskilled” workers), the fourth preference EB-4 (certain special immigrants), and the fifth preference EB-5 (immigrant investors). At the beginning of each fiscal year (October 1), 140,000 employment-based visas are made available for these preference categories, according to the U.S. Department of State.
The EB-2 NIW, which we are discussing in today's blog, is a second-preference employment-based green card. The EB-2 NIW differs from the general EB-2 green card because it requires a National Interest Waiver. We discuss this later.
Like the general EB-2 category, the EB-2 NIW petition extends to three groups of people:
· those with exceptional ability in the sciences, arts, or business,
· those with an advanced degree, or
· those with a bachelor's degree plus five years of experience.
Due to these eligibility requirements, many of those seeking this petition are scientists, professors, engineers, pilots, teachers, and even artists. But if you are an entrepreneur with exceptional ability in your field, an advanced degree, or a bachelor's degree with post-graduate experience, then you too can apply for this petition.
National Interest Waiver
The EB-2 NIW requires you to qualify for the National Interest Waiver (NIW). The NIW waives any requirement for a job offer or a labor certification requirement, which is necessary for the general EB-2 and other employment-based green cards. This allows you to petition for yourself instead of having an employer petition for you, which is a major draw for many foreign nationals.
One of the first steps to meeting the NIW is to establish a “proposed endeavor,” or detailed plans for your career in the United States. You must demonstrate that your proposed endeavor fits three aspects established by USCIS:
· The person’s proposed endeavor has both substantial merit and national importance;
· The person is well positioned to advance the proposed endeavor; and
· On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus a permanent labor certification.
Applying for the EB-2 NIW as an entrepreneur
For most EB-2 NIW applicants, USCIS requires you to submit at least three pieces of evidence to support your credentials. This may include:
· Your academic record
· Letters from current or former employers documenting at least 10 years of work experience
· Licenses and certifications
· Membership in professional associations
· Government or professional recognition for achievements, and
· Documentation that you have commanded a higher salary due to your exceptional ability.
However, in January 2022, the guidance on National Interest Waivers was updated, recognizing that entrepreneurs may submit different evidence to support their case. USCIS explains that evidence for entrepreneurs may include the following:
· Ownership and role in a U.S.-based business,
· Investments,
· Participation as an “incubator,” which is a “private or public entity that provides resources, support, and assistance to entrepreneurs to foster the growth and development of an idea or business,“
· Participation as an ”accelerator“—a ”private venture capital entity [that] focuses on helping entrepreneurs and their startups,“
· Awards or grants from federal, state, or local government entities,
· Intellectual property, or ”relevant patents held by the petitioner or one of the petitioner's current or former startup entities,"
· Published materials about the petitioner and/or the petitioner's U.S.-based entity,
· Documentation of revenue generation, revenue growth, and job creation, and
· Letters and/or statements from third parties.
Why is it important that the policy has been updated to include this evidence?
Well, presenting some of the aforementioned evidence is an excellent way to strengthen your case. A publication by Scott Legal, P.C., explains that “if you have an established business that has created many jobs and has had a strong economic impact… this could be a good basis for a National Interest Waiver case, since you could argue the substantial merit and national importance of job creation and the business's economic impact.” Providing evidence that you have successfully run a business can also “demonstrate that you meet the second component [of the NIW] and are well-positioned to advance the endeavor.” If you are not currently a business owner and plan to start a business in the U.S., you can argue your basis for all three points by presenting evidence of your credentials and business plan. An example of an EB-2 NIW application as an entrepreneur
Here is an example of how the EB-2 NIW self-petition could work as an entrepreneur looking to start businesses in the U.S.:
Juana has managed restaurants in her native country, the Dominican Republic, for 11 years. She earned a master's degree in hotel management and, through her education and career, has become passionate about serving quality, organic, and locally sourced food—something her own restaurants have been doing for years—while also serving popular recipes from the Dominican Republic and other Caribbean countries. Juana has been invited to industry seminars and conferences to speak about the importance of connecting with local farmers and providing high-quality food for customers, and she has written articles that have appeared on various restaurant industry websites. She has also been recognized by other professionals for her contributions to the restaurant industry.
Mindful that many in the United States cannot access fresh, organic, and locally sourced food at a reasonable price, Juana's proposed endeavor is to create a restaurant chain that serves affordable, high-quality Caribbean-inspired meals to many communities in the US. She has submitted a business plan and secured $500,000 in funding through investors.
Juana argues that her endeavor proposal defends the three pillars of the NIW:
· It offers substantial value because it promotes healthy food choices while working with local farmers and businesses. This effort is also important on a national level because it seeks to improve Americans“ eating habits and access to affordable, healthy food.
· Juana is also well-positioned to advance this effort because she has years of experience managing her own healthy-menu restaurants, connecting with local farmers and businesses, and sharing insights about her work with the restaurant industry through articles and industry conferences. She has also secured $500,000 from investors to launch her project.
· Finally, the initiative proposed by Juana is beneficial to the United States because it will boost various local economies, work alongside local farmers and businesses, promote healthy eating among Americans, and add a unique cultural touch to the restaurant industry.
It is important to note that, as mentioned earlier, Juana must provide all necessary evidence and documentation to support her proposed endeavor and how it meets the three criteria; ultimately, it is up to USCIS to determine whether this case can be approved. Do I need a business immigration attorney for my EB-2 NIW case?
The EB-2 NIW allows you to self-petition, but that doesn’t mean you have to do everything on your own. It’s a good idea to work with an experienced business immigration attorney to ensure that your proposed endeavor meets the three requirements of the NIW.
You can find several online guides on how to handle your own EB-2 NIW case, but your case is unique and requires specific arguments that a business immigration attorney can craft. Even if you believe your qualifications and proposed endeavor meet the EB-2 NIW eligibility requirements, you might be overlooking something that an attorney would recognize immediately.
Take, for example, these EB-2 NIW business petitions that were denied: · This petition to open several Japanese restaurants in Florida was denied because the petitioner failed to establish national significance, demonstrate how the business ”would result in substantial positive economic effects,“ or show how the business’s job creation would benefit the nation. ·
Similarly, in this petition to open a Brazilian restaurant, the Administrative Appeals Office (AAO) found that the petitioner ”[did not provide] sufficient and specific information and evidence to demonstrate that the potential impact of his specific proposed endeavor rises to the level of national importance.”
The petitioner also failed to provide information on the planned staffing levels for the restaurant, so the AAO was unable to determine how his business would economically impact the U.S.
Outlining your proposed endeavor and gathering all the necessary evidence is a complicated and time-consuming process, so it’s a good idea to hire a business immigration attorney to assist you. Eagan Immigration’s lead business attorney, Hannah Whaley, can help you draft your business plan and develop arguments to demonstrate how your endeavor meets all three criteria. For more information on whether your case qualifies for the EB-2 NIW, call our office today at (202) 709-6439, or click on this link.
References
Employment-Based Green Cards, U.S. Citizenship and Immigration Services, October 31, 2022, Employment-Based Green Cards | USCIS, (last visited January 30, 2024).
Employment-Based Immigrant Visas, U.S. Department of State – Bureau of Consular Affairs, Employment-Based Immigrant Visas (state.gov), (last visited January 30, 2024).
Employment-Based Immigration: Second Preference EB-2, U.S. Citizenship and Immigration Services, April 20, 2022, Employment-Based Immigration: Second Preference EB-2 | USCIS, (last visited January 17, 2024).
Policy Manual: Chapter 5 – Advanced Degree or Exceptional Ability, U.S. Citizenship and Immigration Services, January 5, 2024, Chapter 5 – Advanced Degree or Exceptional Ability | USCIS, (last visited January 18, 2024).
Can Entrepreneurs Qualify for the EB-2 National Interest Waiver? Can I only apply with an established business or can I apply if I have an idea for a new startup? Scott Legal, P.C. February 4, 2021, Can entrepreneurs qualify for the EB2 NIW (legalservicesincorporated.com)?
In Re: 28092498, Administrative Appeals Office Non-Precedent Decision: Appeal of Texas Service Center Decision, U.S. Citizenship and Immigration Services, September 7, 2023, SEP072023_03B5203 (uscis.gov).
In Re: 18038375, Administrative Appeals Office Non-Precedent Decision: Appeal of Nebraska Service Center Decision, September 2, 2021, SEP022021_02B5203 (uscis.gov).
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