Trying to figure out how to gain permanent residency in the United States can be daunting and difficult.
For entrepreneurs who may or may not have employment or may not even reside in the United States, there are options to attain a green card.
In the past few years, there have been many changes in American immigration laws and these have had a significant impact on entrepreneurs who want to remain permanently in the United States.
Whereas the EB-5 Immigrant Investor Program is often the most common path to permanent residency, it may not be the most successful for entrepreneurs. One of the reasons is that the backlog caused by EB-5 applications may cause delays.
Therefore, entrepreneurs should look for alternatives.
The EB-2 Visa Is Great For Entrepreneurs
One of these alternatives is the EB-2 visa, which is for entrepreneurs who want to make a significant economic impact in the United States.
In particular, EB-2 is for entrepreneurs who have a specific business plan that will directly and impactfully benefit the American economy, (especially in job creation!). The EB-2 visa is also a viable path to permanent residency.
The Employment Based 2nd Preference Immigration Visa, more commonly known as EB-2 visa, grants permanent residency to foreign nationals who have advanced degrees or exceptional ability.
To be eligible for this visa, an individual can either hold an advanced degree (or its equivalent) or have an exceptional ability in the sciences, arts, or business.
There are three subcategories of the EB-2 visa, and each use a separate application:
1) EB-2A (Advanced Degree)
2) EB-2B (Exceptional Ability); and
3) EB-2C (National Interest Waiver).
The first two require an employer, but the EB-2C National Interest Waiver (NIW for short) does not. Therefore, this is the best path in terms of an EB-2 visa for self-employed entrepreneurs.
For the NIW, applicants can either have a job offer or can file a self-petition with the Immigrant Petition for Alien Worker (Form I-140) and provide evidence that their business is in the national interest of the United States.
Importantly, please remember that the NIW allows foreign nationals to seek an exemption from the employment or job offer requirement and the labor certificate requirement of the other two EB-2 applications.
There is a three-prong test for the labor requirements to be waived:
1) The petitioner’s work has intrinsic merit
2) The proposed benefit of the petitioner’s work is national in scope
3) Not granting the NIW petition will adversely impact the national interest.
Additional Requirements of EB-2 Visas
Articles And Letters Of Recommendation
Specific information is required to provide evidence showing why the petitioner qualifies for the EB-2 visa for entrepreneurs.
For the first requirement, the entrepreneur should provide articles or publications detailing previous and current work to prove its importance as well as recommendation letters in the field that can verify the importance of the work.
Recommendation letters may include information not only on the entrepreneur’s work but also evidence of membership in professional associations, recognition of achievements among peers, experts, and other entrepreneurs.
The second prong can also be satisfied through recommendation letters that discuss how the entrepreneur will benefit the United States as a whole.
Articles, publications, and letters from former or current employers and experts should discuss the scope and importance of the work.
It is important to keep in mind that these letters are not all weighted equally.
Letters from colleagues who worked on businesses with the entrepreneur may not be as impactful as those from colleagues that were influenced but did not work with the entrepreneur. The credentials of the recommender must be included with the letter, which is submitted with the Form I-140.
Demonstration of True National Interest
The third and final requirement to qualify for the EB-2 visa is that an entrepreneur must prove that not granting the petition will negatively impact the national interest.
To fulfill this third prong, an entrepreneur needs to demonstrate the following:
1) contributions to the field or area of specialty and the work has had a “certain degree of influence” on the field
2) the evidence shows that the entrepreneur has performed at a higher level than peers with similar minimum qualifications; and
3) the entrepreneur will continue to contribute to the field or area in which he or she has been working. More specifically, an entrepreneur should document how the business enterprise will directly and positively impact the U.S. economy.
Whereas there are three specific prongs an applicant must meet under the National Interest Waiver category, an applicant must also meet at least three of the following requirements:
- Official academic record of a degree relating to the field of exceptional ability;
- 2) Documentation of at least 10 years of work experience in the field;
- Professional license or certification;
- A salary that indicates the person has exceptional ability in the field;
- Be a member of related professional associations;
- Peer or government recognition of achievements in the field;
- Any other comparable evidence of exceptional ability.
Objective evidence is required to meet all prongs, especially in relation to the impact or influence of the entrepreneur’s work.
This evidence usually can be in the form of citations to papers, articles, or other publications, the use or implementation of patent(s), and/or any other evidence on the use or reliance of entrepreneur’s work by others.
A note about the implementation of patent(s) requirement: evidence to qualify for the EB-2 visa may include contracts from companies indicating use of products or documents showing that companies use/license technology licensed technology invented by the petitioner.
Other evidence includes copies of grants or other funding that include information on the amounts and mentioning the investors.
Applying for EB-2 visas
For EB-2 applications, an entrepreneur needs to complete specific steps.
Filing Form I-140
First is to file Form I-140, the Petition for Alien Worker, which is the self-petition for permanent residency.
Second, a background check is required in order to show that the entrepreneur and his or her family members do not have prior violations – criminal or immigration – or problems that would make them ineligible for the green card.
The information provided must be detailed in terms of education, training, work experience, and other qualifications.
Finally, when the Form I-140 is approved, the entrepreneur must file Form I-485 for an adjustment of status or attend a consular processing interview at a U.S. consulate in their country. When they are approved, they will receive a permanent resident card (a green card) by mail.
Attorneys Can Help With Your EB-2 Application
The application process may be difficult to attempt alone.
It is generally advisable to hire an immigration lawyer who can help move through the land mines and who knows what the United States Citizenship and Immigration Status (USCIS) is looking for in an applicant.
The attorney should specialize in EB-2 visas and the entrepreneur should understand that he or she will need to invest a lot of time in the process to provide the required evidence.
Processing Time For EB-2
It may take six months to process the I-140 although processing time will change on a case-by-case basis.
Once approved, the priority date must become current which normally occurs with the approval of the petition. The priority date is an applicant’s place in line for a visa and is based on country of origin and preference category (EB-2, EB-3, etc.).
If the priority date is current, then there is no waiting and the visa number is available. For applicants from countries with many applications, particularly for those from India or China, however, the process may take years.
Then, the processing of Form I-485 may take an additional six months. So overall, the process may take from one and a half years to several years.
By careful of pitfalls. The USCIS looks closely at previous business relationships of the entrepreneur. Avoid unauthorized employment and provide clear material about how any endeavor will benefit the United States, and in particular, job creation.
The EB-2 visa for entrepreneurs is a real option that takes time, resources, and patience but can lead to the permanent residency green card.