For foreign companies and entrepreneurs seeking to operate in the United States, a persuasive immigration case increasingly begins with a practical question: What measurable value will the U.S. operation create? Investment committed, customers secured, revenue generated, and jobs supported can make the answer tangible.

That emphasis fits the administration’s broader approach to foreign economic relationships, which prominently links foreign investment to American jobs and growth. It is an interpretive lens, however, rather than a new legal test for every visa category. The existing E-2 and L-1A rules remain the starting point.

E-2: Show both committed capital and a viable enterprise

The E-2 treaty investor visa requires a substantial investment in a real, operating U.S. enterprise that the investor will develop and direct. “Substantial” is assessed in relation to the cost ofestablishing or purchasing the business; there is no universal minimum dollar amount. The enterprise must also be more than marginal.

In practice, applicants should expect close attention to how much has actually been committed and what the money has accomplished. A large balance in a bank account tells less of a story than documented expenditures, an equipped operation, employees, customers, and a credible path to growth.

An acquisition of an existing business may offer a clearer evidentiary record: operating history, financial statements, customers, payroll, and a purchase price tied to an established enterprise. A new venture can qualify just as well under the law, but it may need stronger evidence to overcome the uncertainty inherent in a launch. Signed client agreements, paid engagements, early sales, purchase orders, and well-supported financial projections can help demonstrate viability. Acquisition is not an E-2 requirement or a formal consular preference; its practical advantage is that an operating business often comes with evidence a startup must build from scratch.

New-office L-1A: Show how an executive role will become real

The L-1A category allows a qualifying company to transfer a manager or executive to a related U.S. business. A new office may initially receive only a one-year approval. The petitioner must show that the U.S. operation will support a primarily managerial or executive position within that year. USCIS examines the proposed operation, its financial capacity, and the scope of the business—not merely the transferee’s title.

This makes the first-year staffing plan central to the case. Where the proposed executive will manage people, a credible plan should explain who will carry out sales, service delivery, administration, and other operational work; who will supervise whom; and when those hires will occur. For a business proposing several layers of management, an organizational chart is most persuasive when each position has a defined function, a realistic salary, and funding to support it. Evidence of relevant degrees and professional experience can strengthen the showing that proposed subordinates will perform genuinely professional or managerial work.

A multi-level hierarchy and university degrees for every subordinate are not universal L-1A requirements. USCIS also recognizes function managers, and the appropriate structure depends on the business. The underlying issue is whether the company can realistically free the transferee from primarily performing its day-to-day services within the first year.

The practical shift

For both categories, the strongest presentation connects the immigration request to evidence of an executable U.S. business. E-2 applicants should document capital at risk and market demand. New-office L-1A petitioners should document the resources, hiring sequence, and operating structure that will support executive or managerial work.

The message for foreign businesses is straightforward: a U.S. expansion plan is more convincing when its investment, customers, and jobs can be traced through records and realistic milestones. That has always mattered under the governing rules. In the present environment, it deserves particular attention from the beginning.

U.S. Business Immigration Is Asking a More Concrete Question: What Will This Enterprise Build?

For foreign companies and entrepreneurs seeking to operate in the United States, a persuasive immigration case increasingly begins with a practical question: What measurable value will the U.S. operation create? Investment committed, customers secured, revenue generated, and jobs supported can make the answer tangible.

That emphasis fits the administration’s broader approach to foreign economic relationships, which prominently links foreign investment to American jobs and growth. It is an interpretive lens, however, rather than a new legal test for every visa category. The existing E-2 and L-1A rules remain the starting point.

E-2: Show both committed capital and a viable enterprise

The E-2 treaty investor visa requires a substantial investment in a real, operating U.S. enterprise that the investor will develop and direct. “Substantial” is assessed in relation to the cost of establishing or purchasing the business; there is no universal minimum dollar amount. The enterprise must also be more than marginal.

In practice, applicants should expect close attention to how much has actually been committed and what the money has accomplished. A large balance in a bank account tells less of a story than documented expenditures, an equipped operation, employees, customers, and a credible path to growth.

An acquisition of an existing business may offer a clearer evidentiary record: operating history, financial statements, customers, payroll, and a purchase price tied to an established enterprise. A new venture can qualify just as well under the law, but it may need stronger evidence to overcome the uncertainty inherent in a launch. Signed client agreements, paid engagements, early sales, purchase orders, and well-supported financial projections can help demonstrate viability. Acquisition is not an E-2 requirement or a formal consular preference; its practical advantage is that an operating business often comes with evidence a startup must build from scratch.

New-office L-1A: Show how an executive role will become real

The L-1A category allows a qualifying company to transfer a manager or executive to a related U.S. business. A new office may initially receive only a one-year approval. The petitioner must show that the U.S. operation will support a primarily managerial or executive position within that year. USCIS examines the proposed operation, its financial capacity, and the scope of the business—not merely the transferee’s title.

This makes the first-year staffing plan central to the case. Where the proposed executive will manage people, a credible plan should explain who will carry out sales, service delivery, administration, and other operational work; who will supervise whom; and when those hires will occur. For a business proposing several layers of management, an organizational chart is most persuasive when each position has a defined function, a realistic salary, and funding to support it. Evidence of relevant degrees and professional experience can strengthen the showing that proposed subordinates will perform genuinely professional or managerial work.

A multi-level hierarchy and university degrees for every subordinate are not universal L-1A requirements. USCIS also recognizes function managers, and the appropriate structure depends on the business. The underlying issue is whether the company can realistically free the transferee from primarily performing its day-to-day services within the first year.

The practical shift

For both categories, the strongest presentation connects the immigration request to evidence of an executable U.S. business. E-2 applicants should document capital at risk and market demand. New-office L-1A petitioners should document the resources, hiring sequence, and operating structure that will support executive or managerial work.

The message for foreign businesses is straightforward: a U.S. expansion plan is more convincing when its investment, customers, and jobs can be traced through records and realistic milestones. That has always mattered under the governing rules. In the present environment, it deserves particular attention from the beginning.

Written by Chris Costa, Senior Immigration Lawyer at Drummond Advisors

For years, the EB-2 National Interest Waiver (NIW) was regarded as the more accessible path to an employment-based Green Card: it allows self-petitioning, without a job offer or sponsoring employer. Its appeal, however, has never been predictability, since PERM has always been the more predictable route. What drove the rush toward NIW was something else: most candidates do not have a job offer or do not want to remain tied to an employer throughout the process. For these profiles, NIW seemed like the natural choice.

The latest USCIS data, however, point to a changing landscape that requires this assumption to be reconsidered. For the first time, NIW denials exceeded approvals among decided cases.

This article explains why NIW has become riskier, how PERM works, and why, for most profiles, labor certification remains the more predictable route to an EB-2 Green Card.

EB-2 NIW Has Become a Victim of Its Own Success

The popularity of NIW grew rapidly, particularly among STEM professionals and during the remote-work boom.

The volume of petitions nearly tripled between fiscal years 2022 and 2024, an increase of approximately 190%.

When an instrument designed as an exception begins to be used on a large scale, the result is often predictable: greater scrutiny. That is exactly what happened.

The Decline in Approvals Is Not Noise, It Is a Trend

Before looking at the numbers, it is important to establish the metric. In this article, the approval rate is calculated based on cases that were actually decided, meaning approved cases divided by the sum of approved and denied cases. This measure is not distorted by the backlog of pending petitions.

The historical series reveals the extent of the shift:

• FY2018 through FY2023: historical rates of 96% to 97%;
• FY2024: approximately 71% of decided cases;
• FY2025: 55.2%, with the fourth quarter reaching a low of 35.7%; and
• FY2026, first quarter: 42.6%, with more denials (3,206) than approvals (2,380).

The quarterly volatility is, in itself, a warning sign. Throughout 2025, the rate fluctuated from 62.7% to 67.3%, fell to 54.0%, and then declined further to 35.7%.

There is also a symbolic milestone. NIW, historically viewed as more accessible than EB-1A, is now being denied more frequently than EB-1A. In the first quarter of fiscal year 2026, NIW approved 42.6% of decided cases, compared with 47.5% for EB-1A.

This deterioration is not accidental. The USCIS policy tightening throughout 2025, consolidated in the Policy Manual guidance in effect at the end of the year, targeted cases built on promises rather than facts, and this is reflected in the first two requirements of the Dhanasar test.

Under the first prong, national importance, generic ventures, such as opening a consulting firm or providing services to third parties operating in relevant fields, have increasingly been denied because they fail to demonstrate broad impact on a field, region, or the country; diffuse economic benefit or an advantage to a single employer is not enough.

Under the second prong, being “well positioned to advance the proposed endeavor,” USCIS has become less willing to accept arguments based on what may happen in the future: optimistic projections, a business plan on paper, or generic recommendation letters are no longer sufficient. Applicants must provide objective and independent evidence that a real company or endeavor already exists, is operating, and is actually progressing, rather than merely demonstrating the expectation of future contributions. For profiles whose narratives are more speculative than demonstrable, the risk of denial has increased significantly.

The Hidden Cost of NIW: The Entire Burden Falls on the Self-Petitioner

In an NIW case, the burden falls entirely on the self-petitioner. The applicant alone must build and support the national interest argument, based on the contributions they may bring to the United States, independently gathering all evidence capable of demonstrating that potential.

That burden has become heavier. Recent adjudication trends include:

• More frequent questioning of educational credentials;
• Greater demands for independent documentary evidence, rather than recommendation letters alone;
• Application of criteria borrowed from other visa categories to NIW cases; and
• More frequent and more rigorous RFEs (Requests for Evidence) and NOIDs (Notices of Intent to Deny).

Time is also working against applicants. The backlog of pending NIW petitions grew from 74,392 to 82,812 cases in a single quarter, meaning longer processing times and greater exposure to regulatory changes during the process.

PERM: A Structured Process, Not a Gamble

PERM is the labor certification process conducted by the Department of Labor (DOL) and serves as the basis for thousands of EB-2 and EB-3 Green Cards granted each year.

Its greatest strength is precisely its structure. Rather than relying on a subjective assessment of the national importance of a candidate’s proposed work in the United States, PERM is based on objective criteria and steps that are known in advance:

• Prevailing Wage Determination (PWD) with the DOL through ETA-9141;
• Required recruitment and Notice of Filing;
• Labor market test demonstrating the absence of a qualified and available U.S. worker;
• Filing of ETA-9089 through the DOL’s electronic FLAG system, mandatory since June 1, 2023;
• DOL certification;
• I-140 petition with USCIS; and
• Adjustment of status (I-485) or consular processing.

Each step is auditable and defensible. And the burden is no longer placed exclusively on the beneficiary: the sponsoring employer, with support from immigration counsel, shares responsibility for building and funding the case.

The numbers reflect the difference. In the first quarter of fiscal year 2026, EB-2 cases through the PERM route (E21) had a 98.4% approval rate among decided cases, more than double the NIW rate during the same period.

PERM vs. NIW: Where the Case Is More Secure

A direct comparison helps clarify why PERM has an advantage under the factors that currently carry the most weight:

• Approval predictability: approximately 98% for PERM (E21) versus approximately 43% for NIW;
• Burden of proof: shared between the employer and attorney in PERM, entirely on the beneficiary in NIW;
• Evidence standard: objective, process-based documentation in PERM versus a discretionary showing of national importance in NIW;
• Case stability: support from an employer in PERM versus an independent self-petition exposed to variations among adjudicating officers in NIW; and
• Costs: recruitment costs are covered by the employer in PERM, while the beneficiary bears the costs in NIW, including responses to RFEs and NOIDs.

One figure captures the shift particularly well: in fiscal year 2025, the volume of NIW petitions (66,276) exceeded that of EB-2 cases through PERM (49,921). The exception began to be used more than the rule, and that widespread use attracted the scrutiny that is now affecting the category.

Who Is PERM the Right Choice For?

In practice, PERM is the more suitable route for many EB-2 profiles. It often makes sense for:

• Professionals with a job offer and an employer willing to sponsor them;
• Engineers, IT professionals, managers, and other strong candidates without a clear national importance narrative;
• Candidates who have already had an NIW denied or have received an RFE or NOID; and
• Those who value predictability over independence.

Recognizing the Trade-Offs of PERM

No pathway is without drawbacks. PERM depends on a willing employer and involves strict recruitment requirements, specific timelines, and some risk of an audit.

The difference is that these are known, predictable, and manageable challenges with proper counsel, rather than the growing uncertainty that currently characterizes NIW.

NIW, in turn, remains an excellent pathway for truly exceptional profiles, such as leading scientists, researchers working in critical technologies, and professionals in healthcare and national security with a strong track record. The issue is not abandoning NIW, but using it only when the level of risk is justified.

The Strategic Question Before Filing

In the current landscape, the decision between PERM and NIW should not be automatic. Before choosing a pathway, it is worth answering several questions:

• Does the profile convincingly support a national importance narrative under the current level of scrutiny?
• Is there an employer willing to sponsor the candidate and complete the PERM process?
• What is the real cost, in terms of time and risk, of a potential denial under each pathway?
• Is the immigration timeline aligned with the candidate’s professional and personal timeline?

The answers to these questions, rather than NIW’s former reputation as a shortcut, should guide the decision.

Conclusion

Predictability has become the most valuable asset in an employment-based immigration process.

For many EB-2 profiles, PERM offers that predictability today, not because it lacks procedural steps, but because it is built around clear rules, objective criteria, and a burden shared with the employer.

Even so, the best pathway depends on the facts of each case. An individualized assessment with an immigration professional is what turns market data into a sound strategy for pursuing a Green Card.

Written by Julia Malheiros and Larissa Matos