Can a founder get a National Interest Waiver? How USCIS treats entrepreneurs and startups

Who files when the founder is the business?

Most EB-2 petitions need a US employer, a job offer and a labor certification from the Department of Labor. A national interest waiver removes the job offer, so the person can self-petition, filing Form I-140 for themselves. The regulation, worded for exceptional ability, says the person or anyone on their behalf may be the petitioner. The Policy Manual's entrepreneur section treats the founder as both petitioner and beneficiary.

The waiver framework in Matter of Dhanasar was written partly with founders in mind. The earlier test asked petitioners to compare themselves with unidentified US workers, which the Administrative Appeals Office (AAO) found ill-suited to self-employed people such as entrepreneurs.

Sources: 8 CFR 204.5(k)(1); USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.6; Matter of Dhanasar, 26 I&N Dec. 884, 888 and 890 (AAO 2016)

Step one is still the EB-2 basis

The founder must qualify as an advanced degree professional or a person of exceptional ability before the waiver is considered. For advanced degree professionals, the occupation through which the endeavor is advanced must be a profession: an occupation listed in INA 101(a)(32) or one needing at least a bachelor's degree to enter. USCIS decides this case by case, including for certain entrepreneurial endeavors. Its example: an engineering Ph.D. who proposes to open a bakery may have difficulty, because a baker's occupation does not typically require a degree.

For exceptional ability, the area of exceptional ability must be directly related to the proposed endeavor.

Sources: USCIS Policy Alert PA-2025-03, 15 January 2025; USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.6

What USCIS says about entrepreneurs under each prong

The Policy Manual describes an entrepreneur's endeavor as often carried out through a US-based entity in which the founder has, or will have, an ownership interest and an active, central role. It then gives examples of where founders fall short:

• Prong 1, national importance: opening a consulting firm for people working in a nationally important occupation is not enough by itself, and neither is the importance of the whole industry, such as car dealerships, for someone starting a dealership. A startup petition should show in detail how this specific endeavor meets the standard.
• Prong 2, well positioned: general work experience may not be enough. A former bank teller or accounts manager may not be well positioned to launch a consultancy advising US banks nationally.
• Prong 3, the balance: where the founder is self-employed in a way that generally does not affect US workers, or owns a business that employs US workers, there may be little benefit in requiring labor certification.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.6; USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.3, third prong

What should the business plan show?

A business plan helps explain objectives, but the Policy Manual says it should be supported by other independent evidence. Strong petitions connect the founder's record of success to a forecast for continued success, show steps already taken and tie the plan to the founder's background. USCIS welcomes probative evidence on how the founder has anticipated metrics such as market size and share, job creation and revenue growth.

Revenue, profit, valuation, cash flow and customer adoption are common measures, but other metrics can matter as much. Quoting Dhanasar, USCIS accepts that many ventures fail despite an intelligent plan and competent execution, so the petitioner does not have to show the business is more likely than not to succeed. What must be shown, more likely than not, is each of the three prongs.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.3, second prong; USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.6 (business plans and metrics); Matter of Dhanasar, 26 I&N Dec. 884, 888 and 890 (AAO 2016)

Ownership and role

The founder may own an interest in a US-based entity and may be its founder or co-founder. An appointment as an officer or another key role can show an active and central part in operations. This evidence can help show the founder is well positioned, but ownership of a company rarely establishes eligibility on its own. USCIS reviews it alongside education, experience and skills.

A petitioner who does not plan to be self-employed is treated differently: a job offer is not required, but USCIS considers a job offer or communications with prospective employers relevant to the capacity in which the endeavor will be carried out and whether the plan is feasible.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.6 (ownership and role)

Funding and investment

An investment, a binding commitment to invest or other evidence of future investment by an outside investor, in line with industry standards, can independently support substantial merit or the founder being well positioned. Investors can be individuals, such as angel investors, or organizations such as venture capital firms. Because capital needs differ, USCIS considers how much capital the endeavor actually needs when judging whether the founder has secured enough.

More generally, the Policy Manual lists documentation of feasible plans for financial support, and investment from US investors such as venture capital firms, angel investors or startup accelerators in amounts appropriate to the endeavor.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.6 (investments)

Other evidence USCIS lists for founders

USCIS weighs all evidence in the aggregate, and no single item necessarily establishes eligibility. Beyond the general NIW evidence, the Policy Manual lists:

• Degrees, certifications, licenses and letters of experience, such as having led earlier startups successfully.
• Admission to an incubator or accelerator, which officers may treat as an endorsement; evidence of the program's past success can be submitted.
• Awards or grants from government bodies with expertise in economic development, research and development or job creation, or from policy or research institutes.
• Intellectual property, such as patents held by the founder or their current or earlier startups, with evidence of why it is significant and how the founder contributed.
• Published material showing that the founder, or the company with reference to the founder's role, received significant media attention.
• Growth in revenue and US jobs, and the founder's part in it. Combined with, for example, a location in an economically depressed area, this can also support national importance.
• Letters from government entities, outside investors or business associations. Founders rarely get academic peer review, but industry experts, investors and retailers can act as reviewers, and their credentials can be documented.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.6 (ownership and role); USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.6 (investments); USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.6 (business plans and metrics)

Forms and fees for a founder's petition

The petition is Form I-140, requesting the national interest waiver. Because the waiver replaces the labor certification, the petition also includes the employee-specific portions of a labor certification form, either Form ETA-750 Part B or Form ETA-9089, not certified by the Department of Labor.

For the dated government fees, including the Asylum Program Fee and premium processing, see the I-140 filing fees guide. Lawyer fees, business plan preparation and expert letters are separate costs, not government fees.

Sources: 8 CFR 204.5(k)(1); USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D (labor certification forms)

Common problems for founders

These come from USCIS guidance and are patterns, not predictions.

• Relying on the general value of entrepreneurs or small businesses instead of this endeavor's impact.
• Projections with no corroborating evidence: claims lacking corroboration do not meet the burden of proof.
• Treating company ownership or a founder title as proof of being well positioned.
• An endeavor outside the founder's degree, profession or area of exceptional ability.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.6; USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.3, second prong; USCIS Policy Alert PA-2025-03, 15 January 2025

How Visa Trouble can help

Free route discovery at Visa Trouble covers EB-1A and the National Interest Waiver alongside other green card paths. We’re building application preparation for both; it is planned, not open yet. Visa Trouble is not a law firm and does not give legal advice.

Free route discovery is at visatrouble.com.