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Entrepreneurship in the U.S.’s National Interest

Typically, a petition in the employment-based second-preference immigrant visa category must be accompanied by a certified labor certification from the U.S. Department of Labor and a job offer. However, the law allows these to be waived if it would be in the national interest of the U.S. to do so.

First you must demonstrate 3 of the following criteria:

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
  • Letters documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations 

Other comparable evidence of eligibility is also acceptable.

The criteria for a finding that it is in the national interest to waive those requirements are:

  • The foreign national’s proposed endeavor has both substantial merit and national importance;
  • The foreign national is well positioned to advance the proposed endeavor; and
  • On balance, it would benefit the United States to waive the requirements of a job offer and thus of a labor certification 

Note: “job creation” is a concept that is arguably broad enough to still fit within the general idea of what is in the national interest. But, NIW is highly discretionary and subject to considerable arbitrariness in any event, so caution is recommended.