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IMMIGRATION JULY 31, 2026 | The Indian Eye 35

ers should also consider the National Interest ployment-based category (EB-1A). Similar to of individuals who have risen to the very top of the founder can meet the higher extraordinary
Waiver pursuant to the employment-based the EB-2 NIW, the EB-1A category is particu- the field. ability standard, the EB-1A may both serve as
second preference (EB-2). Unlike a traditional larly advantageous for founders because it does The practical takeaway is straightforward. important pathways for entrepreneurs because
employer-sponsored green card case, the EB-2 not require a job offer, labor certification, or The January 17, 2025 H-1B modernization they allow self-petitioning and may be better
NIW allows self-petitioning and waives the employer sponsorship. Instead, eligible found- rule does not give every laid-off worker a free suited to founder-led cases than the conven-
job-offer and labor-certification requirements ers may self-petition, providing greater flexibil- pass to preserve status through a paper startup. tional labor certification model.
if the founder first qualifies for EB-2 and then ity and independence in pursuing permanent What it does do is create a much clearer path Finally, the H-1B entrepreneur rule re-
satisfies the three-part Dhanasar test: the pro- residence. The standard, however, is higher: for genuine founders to move their H-1B to a mains viable even under a Trump adminis-
posed endeavor must have substantial merit the founder must demonstrate sustained na- company they own, so long as the company is tration that has otherwise moved aggressively
and national importance, the founder must tional or international acclaim and recognition a real U.S. employer, the offered position is to limit immigration options, most recently
be well positioned to advance it, and, on bal- in the field, either through a one-time major a bona fide specialty occupation, and special- through a rule replacing duration-of-status ad-
ance, waiving labor certification must benefit achievement or by satisfying at least three of ty-occupation duties remain the majority of missions for F-1 students, J-1 exchange visitors,
the United States. This framework often fits the regulatory criteria. In addition, the founder the role. For workers who need an immediate and representatives of foreign information me-
entrepreneurs better than PERM, especially must establish an intent to continue working in status solution, that can turn layoff risk into a dia with fixed periods of admission and formal
because labor certification can be difficult in the area of extraordinary ability and show that realistic transition to entrepreneurship, even extension procedures. This broader restrictive
self-employment or owner-beneficiary scenar- such work will substantially benefit the Unit- if founder-owned petitions require earlier environment makes it all the more important
ios. Strong founder NIW cases usually include ed States. For an H-1B founder, EB-1A may extension planning because of their shorter for the administration to recognize the role that
a clear business plan, evidence of the founder’s therefore be a powerful long-term pathway approval periods. For workers who already H-1B entrepreneurs can play in innovation, job
ownership and central role, proof of funding or where the record includes strong evidence such have a pending adjustment application, there creation, and economic growth. We hope the
market traction, intellectual property or other as significant awards, published material about may also be a separate green-card protection administration will preserve and fairly imple-
innovation, and letters or other documentation the founder, original contributions of major strategy through INA section 204(j) and Form ment this pathway so that qualified founders
showing why the specific venture has meaning- significance, participation as a judge of the I-485 Supplement J if the new founder role who satisfy the H-1B requirements can con-
ful U.S. impact. work of others, a leading or critical role for dis- remains in the same or a similar occupational tinue building businesses in the United States.
At the same time, founders should avoid tinguished organizations, high remuneration, classification as the underlying immigrant po-
* Damira Zhanatova is an Associate
relying on broad claims that startups create or other comparable evidence demonstrating sition. And for longer-term residence planning, at Cyrus D. Mehta & Partners PLLC.
jobs or that an industry is important in general. that the founder is among the small percentage the EB-2 National Interest Waiver and, where
USCIS looks for evidence that the particular ________________________________________________________________________________________________________________________________________________________________________________________________
endeavor has concrete national significance
and that the founder is genuinely positioned Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
to carry it forward. The EB-2 NIW may have & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
more limited immediate utility for founders mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
from heavily backlogged countries, such as Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
India, because visa-number availability may re- of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
main years away. Even so, an approved EB-2
NIW petition can still serve as an important Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
anchor for 3-year H-1B extensions under AC21 Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
§ 104(c), as implemented in 8 C.F.R. § 214.2(h) on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
(13)(iii)(E), so long as an immigrant visa is not Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
immediately available at the time the H-1B ex- and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
tension is filed.
If the founder qualifies, they may also be immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
eligible for classification as a Person of Extraor- the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
dinary Ability under the first-preference em- in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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