Green Card for Startup Founders Just Became Easier! New Case Law-
Matter of Dhansar!
Many of my regular readers will know that we have been anxiously awaiting guidance on a green card option known as National Interest Waiver (NIW). We had been waiting for over two years. With just weeks left in the Obama administration, which has been a huge proponent of entrepreneurship, the Administrative Appeals Office issued a precedent decision in the case of Matter of Dhansar on December 27th 2016. It is an enormous gift to entrepreneurs because it revises old law and revamps the law to modern day needs!
While I was aware that National Interest Waiver updates were going to be given in guidance format and not as part of a new rule (that is the inside info I had!), I did not anticipate the legal categories to be overhauled completely through case law. This precedent case law is binding and cannot be changed easily. Before I dive into the excellent details, I want to first address two very important questions I can hear coming from you:
With a new administration taking over on January 20th- can this new law be taken away from us? The answer is not so easily! Case law is not an executive order, like the DACA program. It is not a rule created through the federal register- which will need a new rule to dismantle it. A case like this will need another case to supersede it, or have Congress create new legislation. So, Matter of Dhansar is here to stay for while and is indeed a new year’s gift for entrepreneurs (and others who are eligible). Better yet, it is effective immediately!
What is the Administrative Appeals Office and can it make a binding decision? It is important to understand that the Administrative Appeals Office is the appellate arm of the USCIS and is governed by the Department of Homeland Security. It has jurisdiction over most immigration cases. It issues many decisions a year but a handful of cases create new legal requirements- also known as precedent cases. We are lucky that the new criteria for NIW are set through the AAO for a multitude of reasons but especially in light of a new administration taking over reigns in just 3 weeks that may not render favorable decisions in the future.
Now to the case! Matter of Dhansar ‘vacates’ or removes the old case Matter of New York State Department of Transportation– a case that has governed this area of law since 1998. NIW has always been a difficult standard to meet in cases and even more difficult, if not impossible for entrepreneurs. The old case had a three-prong test:
“The NYSDOT framework looks first to see if a petitioner has shown that the area of employment is of “substantial intrinsic merit.” Id. at 217. Next, a petitioner must establish that any proposed benefit from the individual’s endeavors will be “national in scope.” Id. Finally, the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national.”
All three prongs were difficult to prove but for founders, the second and third prongs were especially problematic. I had once contacted USCIS to ask how many entrepreneurs had filed for successful green card through NIW. USCIS had responded that they could not tell me because the information was not available as they do not distinguish NIW cases based on type of applicant. It was interesting to learn that. In any event- now to the important stuff!
Matter of Dhansar sets a new three prong test:
- That the foreign national’s proposed endeavor has both substantial merit and national importance: This can apply to any discipline/industry and the decision specifically mentions business and entrepreneurship, good news for startup founders!
With regard to ‘substantial merits” the decision mentions that the emphasis will be on ‘potential impact’ and the applicant doesn’t need to show “immediate or quantifiable economic impact”. This is very helpful and much more than I was expecting. When it came to startup founders and NIW guidance, I was expecting to see requirements on how much money must have been raised, revenue generated and/or jobs created. With this standard, demonstrating the potential impact may satisfy the test. While funds raised, revenue and job creation may well be part of the evidence to submit to show impact, we do not have to show set amount of money or jobs.
Regarding ‘national importance”- the decision makes clear than geography is not important anymore- as it was in the old case which had a test of ‘national in scope’. Now we can focus on “broader implications”. The decision gives the example that economic development in depressed areas can have national importance. So, we can show local economic impact as is the case with many startups especially in the early stages.
- That the foreign national is well positioned to advance the proposed endeavor: The emphasis here changes from the ‘work’ (proposed endeavor) to the ‘individual applicant’ (foreign national). The decision makes clear that applicant’s background, skills, experience, record of past success and future potential will be taken into account. This will include demonstrating that the applicant can make progress on the work and to show that, one can have evidence of “customers, users, investors and other relevant entities and individuals.” I find it very interesting that the use of ‘investor’ is included here clearly keeping entrepreneurship and founders in mind.
- That, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. Unlike the previous law in which we had to show that losing the applicant would harm the US, now we can show that the applicant will be beneficial to the US. USCIS will evaluate applicant’s background and work impact to see if it will be ‘impractical” to get a job offer or labor certification and whether it is ‘sufficiently urgent’ to waive the labor certification. USCIS will take all factors into consideration and will make a decision on balance.
If all three criteria are met, the USCIS can approve the case at its discretion. The above criteria are much clearer and give concrete examples. The case shifts overall focus to the individual and the impact the person will make. While all NIW applicants and employers will benefit, startup founders and entrepreneurs will specifically benefit from this new law.
In addition, this decision nicely lines up as the next steps for applicants who will be in the US under the new Entrepreneurial Parole draft rules that came out earlier this year. While the final rule is still pending, it will be issued any day now and specifically before January 20th. The most common question that arose after the Entrepreneurial Parole draft rules were issued- was what next? Now we have the answer and I couldn’t be happier.
This decision also is a great pathway for those who fall short of satisfying the criteria in the EB1 options. It is also likely a great path for people on E2 visas who have long been hoping for a green card option.
This does not take away the problem that EB2 India and China have long waiting times and may not be the best option for citizens thereof. However, it is still something to consider if there are no other options. If you are from India or China and perhaps have an I-140 approved from before, do remember that your priority date can be ported to a case like this and your waiting time will not be any longer than you already have. So, it is still an important option to consider.
While we all rejoice in this decision, it is important to remember immigration cases are never easy. NIW cases will continue to have high standards and we will have to meet the burden of proof. So beware any new NIW application will remain hard work. What just became easier is the fact we have actually achievable criteria- which we did not have before.
A huge thank you the AAO and current administration for working hard on this issue, for persevering to give us a solid case and for overhauling the entire NIW law to take into account modern day considerations. It was worth the wait. This will undoubtedly help foreign entrepreneurs specially but in turn the benefits will be apparent in the economy in due course.
If you are a startup founder, co-founder, investor, or anyone in the startup echo system, please spread the word about the case. If you yourself would like to chat about whether this is a viable option for you or someone you know, please let me know. If you are an employer with someone talented who you want to retain but know other immigration options do not fit, I’ll be happy to see if this is a viable option for you. There are so many possibilities now! I am excited indeed. I can best be reached at firstname.lastname@example.org.
Happy New Year!
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