NIW for Founders After the January 2025 Guidance

Why founders look at NIW

The national interest waiver is one of the few green-card categories a founder can pursue without an employer, a job offer or a labor certification. For someone who has left a research or engineering career to build a company, or who is running the company while on another visa, it is often the first immigrant petition worth considering. In January 2025, USCIS updated its policy guidance on the category. The update clarified how USCIS evaluates EB-2 eligibility and proposed endeavors. Entrepreneurs remain eligible to seek an NIW, but they must address the governing requirements with evidence specific to their circumstances.

The threshold comes first

An NIW is a waiver of the job-offer requirement within the EB-2 category, so the petitioner must qualify for EB-2 on their own terms before the waiver is reached. For employees that is usually simple: an advanced degree and a professional position that requires it. For founders it is where many petitions now fail. The guidance makes clear that holding a master's degree or a PhD does not by itself establish that the applicant is a member of the professions; the occupation itself must require the degree, and a self-created executive role is examined skeptically.

There are two ways through. One is to show that the work the founder actually performs—designing the product, leading the research, engineering the system—is professional work that requires the advanced degree, with evidence of what the founder does day to day. The other is exceptional ability, proven through at least three of the six regulatory factors (degree, ten years of experience, license, high salary, professional memberships, recognition) and a final showing of expertise significantly above the ordinary. Either route needs its own section in the petition, with exhibits, rather than a sentence that assumes the point.

An endeavor is not a business plan

The first Dhanasar prong asks whether the proposed endeavor has substantial merit and national importance. USCIS has said that an endeavor's importance is judged by its broader implications, not by the profits of one company. A petition that describes the market, the product and the growth projections, and then asserts national importance, has described a business, not an endeavor.

The stronger approach identifies the problem the company exists to solve, explains the mechanism by which solving it matters beyond the company's customers—a technology that others will adopt, a supply-chain vulnerability addressed, a public-health gap closed, high-skill jobs created in a specific region—and quantifies what can be quantified. Government reports and agency priorities are useful only when the petition connects them to the founder's specific work. The endeavor should be written once, as a precise paragraph, and used consistently in the petition letter, the founder's statement, the business plan and every supporting letter.

Evidence that the founder is well positioned

The second prong asks whether the founder is well positioned to advance the endeavor. Dhanasar lists the kinds of evidence that answer it: education and skills, a record of success in similar efforts, a model or plan for the future work, progress toward achieving it, and interest from potential customers, users, investors or other relevant entities. The 2025 guidance adds that for entrepreneurs USCIS will consider, among other things, the business plan, funding history, revenue, intellectual property, customer traction and letters from investors or partners.

What officers are really asking is whether anyone other than the founder has acted on this endeavor. Signed customer contracts, paying users, revenue figures from accounting records, investment from identifiable investors on documented terms, pilot agreements, grants, accelerator acceptance, patents filed or licensed, and coverage by independent outlets all answer that question. Projections, pitch decks and letters of general enthusiasm do not. If the company is pre-revenue, the record should show the founder's prior successes in the same field and the concrete steps already taken.

The waiver prong for a self-employed applicant

The third prong asks whether, on balance, it would benefit the United States to waive the job-offer and labor-certification requirements. For founders the argument is usually natural: a labor certification presupposes an employer testing the market for a position, which makes little sense when the applicant created the position and the company. The petition should say so plainly and then show the specific benefits of the founder's continued work—the urgency of the problem, the founder's particular knowledge, the jobs or technology at stake—without the labor-shortage claims that USCIS has rejected.

Timing, alternatives and combinations

The best time to file is when the business has traction that can be documented, not when the idea is freshest. A founder who files too early often receives a request for evidence on the second prong that the company cannot yet answer—or, under the policy in force since August 2026, a denial without any request at all. In the meantime, an O-1 filed through the founder's own company can provide work authorization, and a founder with a strong research record may qualify for EB-1A on recognition rather than on the venture. When the priority date is current, the NIW I-140 can be filed concurrently with the I-485, which brings a work permit and travel document while the case is pending. We assess which combination fits before anything is drafted.