I would not have been tempted to comment on a recent blog post by the USCIS Director Alejandro Mayorkas and the follow up FAQs on the USCIS’ website if it weren’t for a phone call from a client asking about it. The client wanted to consider filing an EB-2 petition seeking a National Interest Waiver as an entrepreneur with a start-up business and an advanced degree. He wanted my opinion on what he saw as a promising USCIS initiative. So I told him. I’ll share my thoughts on Mayorkas’ post here because I know many others will be reading it as an invitation to file these petitions for themselves. Indeed, it is rare that the USCIS throws us a bone with any bone marrow in it, but let’s not get too excited. For what it’s worth, here are my top 3 reasons not to take Mayorkas’ blog post too seriously.
- Mayorkas is not proposing anything new. No statutes have been amended, no regulations have been changed. Matter of New York State Department of Transportation (NYSDOT) decided in 1998 still stands as the precedent decision. And self-petitioning entrepreneurs with advanced degrees or exceptional ability always had the option of pursuing National Interest Waivers…provided they had no other permanent residence options. This is because National Interest Waivers, whether filed by entrepreneurs or by others, can be as easily denied as they can be filed. Their eligibility criteria is so subjective and you are so completely at the mercy of individual examiners that satisfying the three prongs of the NYSDOT is like buying a scratch ticket: you most certainly will satisfy the first prong, probably the second, but rarely the third. (Here’s a sample decision from the USCIS Administrative Appeals Office for those interested in how this works in practice). That’s why these cases are usually filed by those who don’t have what it takes to pursue EB1 and don’t have (or can’t have) the support of an U.S. employer to pursue a permanent alien labor certification, while having a high tolerance for risk and a solid back-up strategy.
- Mayorkas is the USCIS Director, not an examiner. He won’t be adjudicating these cases. You can’t call him on it when your case is denied. You can’t even cite his blog post in your post-denial motion as it is not even intended as the official USCIS policy. Just like any other well-meaning USCIS officer who has ever given misleading information to the public while enjoying immunity from accountability, Mayorkas is not responsible for what he says, only for what he does. That’s right, he is just blogging. The problem is he will mislead many unqualified NIW applicants into filing their self-petitions in hope of benefiting from what they perceive as a paradigm shift in U.S. immigration law or policy, which it isn’t.
- Mayorkas doesn’t mention that National Interest Waiver cases have been historically adjudicated by his agency based on the petitioner’s track record in the field. Past performance is seen by USCIS examiners as a guarantee of your current or future results. So no track record, or a very short track record, of past success as an entrepreneur in the U.S. or elsewhere will be interpreted by the USCIS to mean that there is no evidence of the viability of current venture. You see, these petitions are not approved on the strength of a business plan alone, or based on investment commitments, or even based on the proposed employment of U.S. workers. To establish viability for a NIW for an entrepreneur, either the venture must be operating already and operating successfully, which is difficult, often impossible, when its operation hinges on the immigration status of the individual entrepreneur, or the entrepreneur needs to show a past record of success involving similar ventures. Most self-employed entrepreneurs with a start-up business will have trouble overcoming these burdens.