Knowing Your Immigration Options as an Entrepreneur

In this article we would like to summarize various green card options for entrepreneurs and discuss each category’s benefits and limitations. We are covering only the green card categories that are suitable for those individuals who have ownership stake in their companies or who otherwise would not be able to obtain a Labor Certification.

Please note that other green card options not covered in this article require the labor certification and thus are not appropriate for part-owners or sole owners of companies, as it is virtually impossible to prove that the recruitment of U.S. workers for the foreign entrepreneur’s position would be conducted in good faith.

These options for the intended entrepreneurs include:

1.       EB-1A Extraordinary Ability Immigrant Category

2.       EB-1C for a Multinational Manager or Executive

3.       EB-2 National Interest Waiver Category

4.       EB-5 Job Creation and Capital Investment Category

EB-1A EXTRAORDINARY ABILITY GREEN CARD

EB-1A is an immigrant category for foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics of sustained national or international acclaim.

A job offer is not necessary for the classification and the foreign national can be a self-petitioner.

EB-1A has a 2-step approach:

1)      First, the foreign national must satisfy at least 3 of the listed criteria of extraordinary ability.

2)      Final Merits Determination. Then, USCIS must determine based on the totality of circumstances that the foreign national is one of the small percentage who have risen to the top of their field.

This second step presents significant challenges as it involves a subjective analysis of the evidence.

In addition, in order to qualify for EB-1A, the foreign national must be entering the U.S. to continue work in his or her field of expertise and must prospectively benefit the U.S. in a substantial way.

While the criteria for EB-1A are similar to the criteria in the O-1 nonimmigrant classification, the adjudication of EB-1A is much stricter. As such, USCIS will often not even consider team awards, employer awards or nominations for major international awards as those satisfying the criteria in the EB-1A context even while generally accepting them in O-1 adjudication.

EB-1C GREEN CARD FOR A MULTINATIONAL MANAGER OR EXECUTIVE

EB-1C category was created for managers and executives who are being transferred from an overseas affiliate company to assume a managerial/executive position in the U.S. EB-1C category is similar to L-1A nonimmigrant visa standards and often times managers who are already on L-1A may qualify for EB-1C.

The main distinction between EB-1C and L-1A is that the petitioning U.S. business must have been doing business for at least 1 year as an affiliate, subsidiary, or as the same corporation or other legal entity that employed you abroad.

“Doing business” is defined as the regular, systematic and continuous provision of goods and/or services. It is important to note here that being registered as a legal entity in the U.S. is not the same as “doing business.” A mere presence of the office in the U.S. will not satisfy the “doing business” standard. The company may only file the EB-1C petition for a qualifying manager after having been actively operating and selling its goods or services for at least a year before such petition filing.

While EB-1C may be a logical step for an L-1A holder, it is not limited to L-1A nonimmigrants. Those individuals who are in the U.S. in another nonimmigrant work status and who had worked for the affiliate company abroad in a managerial or executive capacity for at least a year in the preceding 3 years before admission to the U.S. to work for the affiliate entity may also qualify for EB-1C. Similarly, it does not preclude L-1B specialized workers from qualifying for EB-1C if they also held managerial or executive roles while working for the affiliate abroad.

It is also possible for professionals to obtain EB-1C while being petitioned from abroad without first obtaining a nonimmigrant work status if the case is otherwise strong enough and the petitioning U.S. company is well-established.

While we discussed the general qualifications for EB-1C, the standards of adjudication are rather strict, and it may be hard for small businesses that do not have a complex organizational structure and numerous employees on payroll to realistically qualify for EB-1C green card.

The petitioner must prove to the satisfaction of USCIS that the beneficiary will perform primarily managerial or executive functions and will not focus on the day-to-day tasks to produce goods or provide services. While it is clear that in real life a manager is crucial for any company to coordinate the company’s work, it is a completely different matter to prove it for EB-1C purposes by showing the necessary staff members who are capable of relieving the manager from any non-managerial tasks. USCIS is increasingly using the staffing levels and the overall stage of development of the company to decide whether the petitioning business can support a manager or executive.

Thus, often times when the U.S. business is not planning an expansion of its staff and does not yet have a complex organizational structure with multiple levels of subordinate employees, including subordinate managers or professional employees, it may be too early to apply for EB-1C. As an alternative, the entrepreneur may consider other green card options listed in this article.

EB-2 NATIONAL INTEREST WAIVER

In our opinion, EB-2 NIW is a more attainable green card classification as compared to all others and our ultimate favorite.

Just like EB-1A extraordinary ability classification, EB-2 NIW does not require a job offer and allows self-petitioning.

On December 27, 2016, a precedent case Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), was decided, which created a new analytical framework for National Interest Waiver cases that is more flexible and more broadly available to foreign nationals pursuing endeavors that would benefit the United States, including entrepreneurs and self-employed individuals.

Many entrepreneurs may not even realize that EB-2 NIW is a proper fit for them. The truth is, nowadays many technological innovations, including innovations in IT industry, can be tied to the national interest of the U.S.

Under the new NIW test, the petitioner must show:

1. The foreign national's proposed endeavor has both substantial merit and national importance. A wide range of fields of endeavor may qualify, including business, entrepreneurialism, science, technology, culture, health, and education.

2. The foreign national is well-positioned to advance the proposed endeavor. In this aspect, USCIS will look to the foreign national’s education, skills, knowledge and record of success in related or similar efforts, a model or plan for future activities, progress toward achieving the endeavor, and the interest of potential customers, users, investors or other relevant entities or individuals.

3. On balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements of the EB2 category. In this requirement, USCIS will consider what challenges would the foreign national face to secure a traditional job and pursue a labor certification in the context of his/her qualifications, whether the U.S. national interest would still be served by the foreign national's contributions even if qualified U.S. workers are otherwise available, and whether the national interest of the foreign national's contributions warrants the waiver of the labor certification process.

It is important to note however that in addition to satisfying the NIW standard as described above, EB-2 category is for advanced degree professionals or for individuals of exceptional ability in the sciences, arts, or business. If the individual does not possess an advanced degree, which is a master’s degree or a baccalaureate degree plus 5 years of progressive work experience in the field, then the foreign national has to prove exceptional ability in the field. The standards for exceptional ability may be found here.

Overall, in our experience, it is much easier and faster for many foreign nationals involved in innovative technology development to qualify for EB-2 NIW than for any other green card option.

EB-5 JOB CREATION AND CAPITAL INVESTMENT CATEGORY

Finally, the last green card option that may be appropriate for entrepreneurs is a traditional direct investment route through EB-5 category.

Entrepreneurs are eligible to apply for EB-5 green card if they:

• Make the necessary investment in a new commercial enterprise in the United States (established after November 29, 1990 with certain exceptions); and
• Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.

The qualifying jobs must be created directly by the new commercial enterprise to be counted. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees . In the case of a troubled business, the EB-5 investor may rely on job maintenance.

Required minimum investments are:

• General. The minimum qualifying investment in the United States is $1 million unless the investment is in a Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.
• A targeted employment area is an area that, at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 percent of the national average rate.

In addition, the entrepreneur must establish the legal source of the capital invested.

EB-5 category may be a good fit for certain entrepreneurs but petitioners have to take into account long processing times, which currently exceed 1 year as well as a two-step process in which the initial green card is only good for 2 years and the entrepreneur must apply to remove the conditions on residence after 2 years, confirming that the investment has been sustained and that the required number of employees has been hired. Many entrepreneurs cannot predict how their business will be doing and it is a tricky situation if the initial business plan model changes before a permanent green card is received, which may result in the entrepreneur’s inability to remove the conditions on residence and lose the green card.

Each case is different and needs to be evaluated to determine the best green card option. To schedule a consultation, click here.