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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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