National Interest Waiver for Entrepreneurs: Uncharted Waters

National Interest Waiver (NIW) for computer engineer will test USCIS commitment to entrepreneurs

We are excited to have been retained to file our first NIW for a computer engineering entrepreneur. The company is a small computer engineering company in the Mid-West established by a husband and wife computer engineering team from Luxembourg. They had a small company in Luxembourg based on one of their patents for ten years before applying for the L-1B specialized knowledge visa for a start-up office in Iowa. The L-1B visa was granted for one year, which is standard for new offices. We then applied for a two-year extension but were only granted one year because the economic downturn had slowed down business growth and expansion.

Because of a change of ownership of the company we decided to switch both the husband and wife to H-1B visas. Now we are looking at green card options. Since the husband is listed as a founder of the company and since the company still has less than 10 employees we decided that it might be difficult to show that the position for the husband was a “bone fide job opportunity” as interpreted by the Department of Labor for PERM applications. Accordingly, we have decided to take up USCIS’s initiative and file an NIW case for the husband showing the value of his patented technology, hardware and software and its potential uses for medical and military purposes as well as the financial services industry. Most significantly we are planning to show that his company’s presence in the U.S. directly and indirectly creates jobs within the U.S.

As of now, there are no precedents for this type of case. USCIS has started its Entrepreneurs in Residence Initiative but so far has not issued any guidance regarding NIW green cards based on job creation. All we have to go on is some vague language on the USCIS website about the NIW category for business entrepreneurs. Stay tuned as we report further on progress with this case.

Article categories: Entrepreneurs and Business Start-ups

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