by Natalie McQuilkin

Are you a foreign national interested in expanding your restaurant business to the United States? Or do you have a plan for starting a new restaurant chain in the United States? One way you can get the ball rolling on fulfilling 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 holding advanced degrees or people of exceptional ability. This is followed by the third preference EB-3 (skilled workers, professionals, and “unskilled” workers), fourth preference EB-4 (certain special immigrants), and fifth preference EB-5 (immigrant investors). At the start of every fiscal year (October 1st), 140,000 employment-based visas are made available to these preference categories, according to the U.S. Department of State. 

The EB-2 NIW, which we’re 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 more below.  

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. 

Because of these eligibility requirements, many who seek out this petition are scientists, professors, engineers, pilots, teachers, and even artists. But if you’re 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. 

The National Interest Waiver 

The EB-2 NIW requires you to qualify for the National Interest Waiver (NIW). The NIW waives any requirements for a job offer or labor certification requirement, which is necessary for the general EB-2 and other employment-based green cards. This allows you to self-petition instead of having an employer petition for you, which is a major draw for many foreign nationals.  

One of the first steps of fulfilling the NIW is establishing a “proposed endeavor” – or detailed plans for your career in the United States. You must prove that your proposed endeavor accommodates three prongs 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 job offer and thus the permanent labor certification requirements.  

Applying for the EB-2 NIW as an Entrepreneur 

For most who are applying to the EB-2 NIW, USCIS requires you to submit at least three pieces of evidence to back up your credentials. This can include 

• your academic record 
• letters from current or former employers documenting at least 10 years of work experience 
• licensing and certifications 

• membership in professional associations 
• governmental or professional recognition for achievements, and  
• documentation that you’ve asked for a higher-than-expected salary due to your exceptional ability.  

However, in January 2022, the guidance on National Interest Waivers was updated, recognizing that entrepreneurs can submit different pieces of evidence to support their case. USCIS explains that evidence for entrepreneurs can include the following: 

• Ownership and role in a U.S.-based business, 
• Investments,  
• Participation as an “incubator” – which is a “private or public entit[y] that provide[s] resources, support, and assistance to entrepreneurs to foster the growth and development of an idea or enterprise, 
• Participation as an “accelerator” – a “private venture capital entit[y] [that] focus[es] on helping entrepreneurs and their start-ups,” 
• 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 prior start-up 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 was updated to include this evidence? Well, submitting some of the aforementioned evidence is a great way to strengthen your case.  

A post from Scott Legal, P.C., explains that “if you have an established business that has created lots of jobs and had a strong economic impact… this could be a good basis for a National Interest Waiver case as you could argue the substantial merit and national importance of job creation and economic impact from the business.” Providing proof that you’ve successfully run a business can also “demonstrate that you meet the second prong [of the NIW] and are well positioned to advance the endeavor.” If you’re not currently a business owner and plan to start a business in the U.S., you can argue your basis for the three prongs by submitting evidence of your credentials and business plan.  

An Example of Applying for EB-2 NIW as an Entrepreneur  

Here’s an example of how self-petitioning for the EB-2 NIW as an entrepreneur seeking to start businesses in the U.S. could work: 

Juana has managed restaurants in her home country of the Dominican Republic for 11 years. She’s obtained a master’s degree in hospitality management, and through her education and career, she’s become passionate about serving quality, organic, locally sourced food – something her own restaurants have been doing for years – while also serving popular recipes from the DR and other Caribbean countries. Juana has been invited to industry seminars and conferences to talk about the importance of connecting with local farmers and providing high-quality food for patrons, and she has written articles that have been featured on several restaurant industry websites. She has also been recognized by other professionals for her contributions to the restaurant industry. 

Aware that many in the United States are unable to access fresh, locally sourced, organic foods 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 across the U.S. She has laid out a business plan and secured $500,000 in funding through investors.  

Juana argues that her proposed endeavor upholds the three prongs of the NIW: 

• It provides substantial merit because it promotes healthy food choices while also working with local farmers and businesses. This endeavor is also nationally important because it seeks to improve Americans’ eating habits and accessibility to affordable, healthy foods. 
• Juana is also well-positioned to advance the endeavor because she has years of experience managing her own healthy-menu restaurants, connecting with local farmers and businesses, and imparting knowledge on her work for the restaurant industry through writing articles and speaking at industry conferences. She has also secured $500,000 from investors to kickstart her project. 
• Lastly, Juana’s proposed endeavor is beneficial to the U.S. because it will boost various economies, work alongside local farmers and businesses, promote healthy eating for Americans, and add a unique cultural flair to the restaurant industry. 

It’s important to note that, as mentioned before, Juana needs to provide all the necessary evidence and documentation to support her proposed endeavor and how it supports the three prongs, and ultimately, it’s up to USICS to determine if 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 need to do everything yourself. It’s a smart idea to work with an experienced business immigration attorney to ensure your proposed endeavor meets the three prongs of the NIW. You can find several guides online about how to work on your own EB-2 NIW case, but your case is unique and requires specific arguments that a business attorney can create. Even if you think your qualifications and proposed endeavor meet the EB-2 NIW’s eligibility requirements, you could be missing something that an attorney would immediately recognize. Take for example, these EB-2 NIW entrepreneurial petitions that were denied: 

• This petition for opening a few Japanese restaurants in Florida was denied because the petitioner wasn’t able to establish national importance, show how the business would “translate into substantial positive economic effects,” or how the business’s job creation would impact the nation. 
• Similarly, in this petition for opening a Brazilian restaurant, the Administrative Appeals Office (AAO) found the petitioner “[did not offer] sufficient, specific information and evidence to demonstrate the prospective impact of his specific proposed endeavor rises to the level of national importance.” The petitioner also failed to provide information on the restaurant’s planned staffing levels, so the AAO could not determine how his business would economically impact the U.S. 

Establishing your proposed endeavor and securing all necessary evidence is a complicated, time-consuming process, so it’s a good idea to hire a business immigration attorney to help you. Eagan Immigration’s senior business attorney Hannah Whaley can help you write your business plan and create arguments to show how your endeavor fulfills the three prongs.  To learn more if your case qualifies for the EB-2 NIW, call our office today at (202) 709-6439, or click this link to contact Hannah 

References 

Green Card for Employment-Based Immigrants, U.S. Citizenship and Immigration Services, Oct. 31, 2022, Green Card for Employment-Based Immigrants | USCIS, (last visited: Jan. 30, 2024). 

Employment-Based Immigrant Visas, U.S. Department of State – Bureau of Consular Affairs, Employment-Based Immigrant Visas (state.gov), (last visited: Jan. 30, 2024). 

Employment-Based Immigration: Second Preference EB-2, U.S. Citizenship and Immigration Services, Apr. 20, 2022, Employment-Based Immigration: Second Preference EB-2 | USCIS, (last visited: Jan. 17, 2024). 

Policy Manual: Chapter 5 – Advanced Degree or Exceptional Ability, U.S. Citizenship and Immigration Services, Jan. 5, 2024, Chapter 5 – Advanced Degree or Exceptional Ability | USCIS, (last visited: Jan. 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 start up? Scott Legal, P.C. Feb. 4, 2021, Can entrepreneurs qualify for the EB2 NIW (legalservicesincorporated.com). 

In Re: 28092498, Non-Precedent Decision of the Administrative Appeals Office: Appeal of Texas Service Center Decision, U.S. Citizenship and Immigration Services, Sept. 7, 2023, SEP072023_03B5203 (uscis.gov). 

In Re: 18038375, Non-Precedent Decision of the Administrative Appeals Office: Appeal of Nebraska Service Center Decision, Sept. 2, 2021,  SEP022021_02B5203 (uscis.gov).