To stimulate the economy, the Secretary of Homeland Security (DHS), and the Director of the U.S. Citizenship & Immigration Services (USCIS) have announced a program to attract foreign investors to open companies in the U.S. to create jobs here.
Up to now the Immigration laws have not been especially helpful to foreign investors who wish permanent residence and who want to start their own companies in the U.S. The laws have generally favored large companies who need applicants with advanced degrees or who have exceptional ability in the arts, sciences or business. These applicants are required to have a job offer and need to obtain a labor certification. Labor certifications require proof that an employer cannot find any American of equivalent education or skills. This is a cumbersome process because the petitioning company must advertise in newspapers of general circulation and in professional journals and often job seekers who appear qualified require the employer to interview them and then explain why a particular applicant is not qualified for the job. Often employers faced with these obstacles and extensive time delays just walk away from the process.
To further these proposals of DHS and USCIS, an H-1B candidate (highly skilled and highly educated person) may self-petition if he/she owns the company. Thus if the owner himself/herself has a specialty occupation that requires theoretical or technical expertise in a specialized field, he/she can self-petition if he/she is the primary investor in a company in the U.S.
NATIONAL INTEREST WAIVER
A national interest Waiver relieves a petitioner from the requirement of a job and thus avoids the burden of seeking a labor certification that consumes time and effort and can take up to a year or longer to complete. A foreign entrepreneur now may qualify by showing that the job is in the national interest. As a member of a profession or holding an advanced degree he/she may avoid the need for a job offer if it can be proved that the employment would be in the national interest. The petitioner may then petition for himself/herself and avoid the Labor Certification process.
To prove national interest, it is necessary to show that the job itself has intrinsic value for the economy or the country that is of national scope, and that not to hire the entrepreneur would be a calamity for the company. In other words, the national interest would be better served by hiring this proposed foreign worker than it would be by hiring an American.
As an example, if the entrepreneur were an actor who filled a particular role based on his/her experience and ability, the actor as a self-employer would not have to prove that no American could fill the role. It could be maintained that without the petitioner, the movie or play could not be produced, thereby depriving perhaps 50 or more Americans of work. Or as another example, if an hydrologist who had special know-how about overcoming the obstruction of a dam to enable fish to get upstream by an alternate route, the hydrologist could petition for him/herself because of specialized knowledge that not to do so might cut off job opportunities for hundreds or even thousands of Americans. The foreign beneficiary’s qualifications may thus be shown to enhance the welfare of the U.S.
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