This is the first part of a new series of interviews with Tahmina Watson of Watson Immigration Law about changes in immigration policy that impact the tech industry. Watson is an immigration attorney and author of The Startup Visa: Key to Job Growth and Economic Prosperity in America.

What is the National Interest Waiver?

NIW is a green card option for exceptional foreign immigrants whose work is considered of national interest. There’s no statutory definition of “national interest” and up until now, USCIS (United States Citizenship and Immigration Services) has relied on an AAO (Administrative Appeals Office) decision in the 1998 Matter of New York State Department of Transportation case for guidance in deciding such cases.

The New York case sets forth a three-prong test, requiring 1) that the area of employment be of “substantial intrinsic merit,” 2) proposed benefit from the person’s work be national in scope,  and 3) that applicants demonstrate that the national interest would be harmed if the position had to open for recruitment.  

On December 27, the USCIS created a new set of standards for NIW in a new decision named Matter of Dhansar. Under the new Dhansar standards, the overall focus shifts to the talent and value the foreign entrepreneur brings to the table, taking into account the person’s skills, experience, record of past success, and future potential.

This recognizes the of the kind of impact these immigrants can have on the economy and clarifies that the “national in scope” test can allow for economic development in depressed areas of local communities.

Additionally, unlike the previous law in which we had to show that losing the applicant would harm the US, we can now instead show that that person will be beneficial to the US.

USCIS will evaluate each applicant’s background and work impact to see if it will be “impractical” to get a job offer and whether it is “sufficiently urgent” to waive evidence of recruitment efforts to fill the position. The new decision is much clearer and provides concrete examples of how the standards can be applied in individual cases.

How is this related to the Entrepreneurial Parole program?

The Entrepreneurial Parole rule is a new program created by the Obama administration that will allow immigrant entrepreneurs to come to the US to help create jobs and benefit the economy. The final rule will be published on January 17th and will go into effect on July 17th, 2017. The final rule was made available on Friday, January 13th. The Entrepreneurial Parole is only temporary permission to the be in the US; it is not a visa. In addition, there is no specific visa category for entrepreneurs to permanently live in the US, such as a Startup Visa. (We will address this in a different article soon).

So, while there is no direct relation to the Entrepreneur Parole, the new revamped standard for NIW specifically takes into account entrepreneurs and could be a possible option after one completes one’s stay in the US under the new Entrepreneur Parole program.

NIW will help many different categories of talented immigrants. It will especially help immigrant entrepreneurs as there has been no suitable path to permanent residency (also known as a green card) until now.  

What does it matter to the tech industry and what’s the impact to Washington State?

This is an exciting and important time for the tech industry when it comes to immigrant entrepreneurs, especially in our state. As can be seen from the above, we have not had a temporary nor permanent immigration option for entrepreneurs. From July 17th 2017, we will have an immigration option for temporary entries, as long as a new administration does not dismantle it. And, effective immediately, we have a permanent immigration option via Dhansar.

The tech industry is rich with the contributions of immigrant entrepreneurs.  40% of Fortune 500 companies were founded by immigrants or their children. According to a report by the New American Economy, Six of the 10 Fortune 500 firms based in Washington had at least one founder who was an immigrant or the child of an immigrant. In addition, according to the report, immigrant workers account for more than a third of the state’s workers in computer systems design, contributing to Washington’s sizeable technology industry, whose companies generated $37 billion in revenues in 2014 and provided private-sector. A large portion of these immigrants are entrepreneurs.

As such, this update is vitally important to the technology industry particularly in our state.

Who will be eligible?

Many different categories of people will be eligible. One of the common traditional uses for this visa category has been for scientists and researchers. Think of the person researching the cure for cancer, for example. Now, with the revamped standards, immigrant entrepreneurs who have not yet had a suitable green card option will be eligible.  

Can the entrepreneurs’ families also stay and work in the US?

The national Interest Waiver is an application for a green card. If the application is approved, family members will also qualify.

How do people apply?

The application is made to the United States Citizenship and Immigration Service (USCIS) on Form I-140. However, the form is a vehicle for the application. The success will depend on the case itself and the evidence submitted.

Will the new administration be able to change this visa?

Matter of Dhansar was decided by the Administrative Appeals Office, the appeal arm of USCIS. Only another case can reverse the decision of Dhansar or Congress can create new laws. A new administration cannot easily change this.

Tahmina, why do you care about this issue?

As an immigration lawyer representing immigrant entrepreneurs, I have long been frustrated with the shortcomings of our immigration laws.  As a result, I have become a staunch advocate for immigration reform and specifically for creating a visa category for entrepreneurs. I even wrote a book about why we need a Startup Visa. Immigrant entrepreneurs contribute hugely to the United State economy and it is time that an option for permanent residency is available for entrepreneurs. I care because I can now help my clients find a path to staying in the US, growing their startups and contributing to America.