EB-2 NIW for Entrepreneurs: What Changed and How to Apply in 2026

Foreign entrepreneurs who want to live legally in the United States often hear three acronyms as the main routes: EB-5, E-2, and L-1. There is a fourth option, less obvious, that has gained traction since 2022 and is now one of the most widely used paths for startup founders: the EB-2 NIW. Contrary to what many assume, the National Interest Waiver is not exclusive to academic researchers. USCIS formally recognizes that entrepreneurs can qualify when their activity holds national importance for the United States.

This article explains what changed in USCIS policy, which types of evidence matter for founders, how the EB-2 NIW compares to traditional alternatives for entrepreneurs, and when this route makes sense.

The policy update that opened the door for entrepreneurs

In January 2022, USCIS published an update to the Policy Manual on the NIW (PM-602-0184). The document explicitly stated that the scope of the National Interest Waiver includes:

• Professionals with advanced degrees in STEM fields
• Entrepreneurs conducting ventures of national importance, especially in strategic areas for the U.S.
• Researchers and inventors in the early stages of their careers, provided they demonstrate a consistent trajectory

The update did not create a new category; it clarified that the Matter of Dhanasar framework, in effect since 2016, was always flexible enough to accommodate entrepreneurial activities. The practical effect was a significant increase in petitions from founders and CEOs in the years that followed.

The Dhanasar test applied to entrepreneurs

Every EB-2 NIW petition is evaluated under three cumulative criteria. For an entrepreneur, they translate as follows:

1. Venture of substantial merit and national importance

The business must operate in an area that resonates with U.S. priorities. Artificial intelligence applied to healthcare, cybersecurity, semiconductors, clean energy, biotechnology, critical infrastructure, and fintech focused on financial inclusion are examples with a natural fit for the national importance argument. The entrepreneur should connect the business thesis to public federal reports and agendas (NSF, NIH, DOE, CHIPS Act, executive orders) whenever possible.

2. Being well-positioned to advance the endeavor

Here, USCIS wants to see concrete traction. A pitch deck idea is not enough. Typical evidence includes:

• Cap table and corporate agreements
• Raised investment, with term sheets or convertible notes
• Acceptance into recognized accelerator programs (Y Combinator, Techstars, 500 Global, MassChallenge)
• Recurring revenue, client contracts, MOUs with partners
• Patents or intellectual property registrations
• Coverage in specialized media (TechCrunch, Forbes, relevant trade publications)
• Founder’s resume with advanced education and execution history

3. Benefit of waiving the job offer requirement

For entrepreneurs, this pillar is the most natural: there is no employer willing to file a PERM petition because the petitioner is the employer. The argument is built by showing that the venture does not fit the traditional employment-based flow, that PERM timelines (between 12 and 24 months) would harm fundraising and operations, and that the expected contribution directly benefits the American ecosystem.

Evidence that works for founders

The typical set of exhibits for an EB-2 NIW entrepreneur petition includes:

• Detailed business plan: thesis, market, model, realistic financial projections, projected job creation over the next 5 years
• Recommendation letters: a combination of letters from investors, co-founders, strategic partners, and independent industry experts
• Traction metrics: revenue, number of customers, ARR, signed contracts, formalized partnerships
• Corporate documentation: articles of incorporation in the U.S. (Delaware C-Corp is the standard for venture capital fundraising), cap table
• Fundraising evidence: term sheets, SAFEs, convertible notes, any closed rounds
• Petitioner’s resume: degrees, publications, patents, awards, execution history at other companies

EB-2 NIW compared to other routes for entrepreneurs

EB-5 (Investor)

Requires a minimum investment of $800,000 in a project in a TEA area or $1,050,000 in other areas, with the creation of at least 10 direct jobs. It is a valid route for those with significant personal capital seeking permanent residence, but it does not require a connection to a national agenda. The EB-2 NIW costs a fraction of that and focuses on the merit of the venture, not the financial investment.

E-2 (Treaty Investor)

A nonimmigrant visa, restricted to nationals of countries with a bilateral treaty with the U.S. Brazil does not have an E-2 treaty, which eliminates this option for Brazilians. Even for those with another eligible citizenship, the E-2 is renewable but does not lead to permanent residence.

O-1A (Extraordinary Ability)

Nonimmigrant, requires demonstration of extraordinary ability in the field. For tech entrepreneurs, it is frequently used as a bridge while building the EB-2 NIW case. The criteria overlap in part (publications, awards, judging the work of others, original contributions).

L-1A (Intracompany Transfer)

Requires an operation outside the U.S. with more than one year of existence and the petitioner in an executive or managerial role. It is a natural route for those who already have an established company in their home country and want to expand to the U.S.

The distinguishing factor of the EB-2 NIW is that it leads directly to a Green Card without employer dependency, without a minimum capital requirement, and without the need for prior operations in another country. The trade-off is the heavy evidentiary burden regarding the merit and national importance of the venture.

Typical sequencing for Brazilian founders

Brazilians typically follow one of these paths:

1. Direct self-petition: file an EB-2 NIW petition from outside the U.S., then pursue consular processing after the I-140 is approved and the priority date is current
2. O-1A first, EB-2 NIW later: enter on an O-1A to start U.S. operations and, in parallel, file the EB-2 NIW for permanent residence
3. L-1A first, EB-2 NIW later: use the Brazilian company as a bridge via L-1A and stack the EB-2 NIW petition in parallel

The priority date for EB-2 for nationals born outside India or China tends to remain current or retrogress modestly, per the monthly Visa Bulletin. Always check the current bulletin before planning the timing of the I-485 filing or consular processing.

Current fees and timelines

In April 2024, USCIS updated its fee schedule. For the EB-2 NIW entrepreneur petition:

• Form I-140: $715
• Premium Processing (optional): $2,805, decision within 45 business days
• I-485 (if applicable, with adjustment of status): $1,440 for adults

Without premium processing, I-140 NIW decisions can range from 6 to 18 months depending on the service center. Entrepreneurs often opt for premium processing to lock in the I-140 approval and organize their fundraising timeline.

Risks and pitfalls

• Business still in the PowerPoint stage: petitions with a plan showing zero traction tend to receive heavy RFEs or denials
• Generic thesis: "we’re going to disrupt market X" without a connection to the federal agenda will not convince the officer
• Inflated business plan: unrealistic revenue projections undermine credibility
• Lack of independent letters: a dossier consisting only of investors and co-founders carries less weight
• Confusion with EB-5: there is no minimum capital requirement; argue the merit of the venture, not the size of the investment

When EB-2 NIW makes sense for entrepreneurs

It makes sense when the founder combines strong individual credentials, a venture aligned with U.S. national priorities, evidence of measurable traction, and a long-term horizon in the U.S. Entrepreneurs with a strong technical profile (engineers, scientists, physicians) building businesses in strategic sectors tend to have the most compelling cases. For those still in a purely conceptual stage, it may be worth entering first on an O-1A, validating the business on U.S. soil, and then building the NIW case based on actual operations.

Victoria Harper

Editor-in-Chief

Meet the author

Leading journalism and editorial content at Visto n’ Visa, Victoria helps make immigration topics clear, trustworthy, and easy to understand. Her focus is on delivering useful, human, and relevant content for people exploring new paths abroad.