Kirberger PC: a boutique law firm providing US visa and immigration services since 1998.
RSS

 

Info

EB2 Entrepreneur Visa Options FAQ

creativity lightbulb 145906327 creativity lightbulb 145906327

creativiy lightbulb 145906327; EB-2 Entrepreneur Visa Options FAQBelow is a FAQ on one entrepreneur visa option, the Employment Based Second Preference (EB2) Immigrant Visa category known as the National Interest Waiver (NIW). USCIS has stated that it is broadening its interpretations of the National Interest Waiver to accommodate entrepreneurs who want to build businesses and create jobs in the US, since entrepreneur visa options are often limited for a variety of reasons.

1. Entrepreneur Visa Option: EB2 National Interest Waiver (NIW)

What is a National Interest Waiver (NIW)?

A National Interest Waiver (NIW) exempts a petitioner from the normal legal requirement of a job offer, and thus from obtaining a PERM labor certification from the US Department of Labor.

Can an entrepreneur qualify for a National Interest Waiver (NIW)?

The National Interest Waiver (NIW) is one entrepreneur visa option. Entrepreneurs, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.

What’s the Processing Time for a National Interest Waiver (NIW)?

The National Interest Waiver (NIW) is a two-step process. An applicant files the first step (I-140 Immigrant Petition) at USCIS. Processing time ranges from 6 months to a year. Premium Processing (expedited processing for an additional $1225 fee to the US Government) is available for nearly every other visa category, but not for the National Interest Waiver. An applicant may process the second step of a National Interest Waiver via USCIS in the US, or through the National Interest Waiver Beneficiary’s US Consulate overseas (Consular Processing is often the faster way to process, but comes with certain risks and limitations). USCIS processing of the second step, the I-485 Application to Adjust Status to Permanent Resident, takes from 4 to 6 months. Filing with USCIS can provide the advantage of blanket US Employment Authorization and Travel Authorization (Consular processing doesn’t offer these benefits). However, processing times for Work and Travel Authorization pursuant to the I-485 normally take about 3 months. Consular processing (also known as Immigrant Visa Processing, or IV Processing) takes approximately 6 months.

The entire National Interest Waiver process takes about 10-12 months once the NIW is filed. However, processing times are extremely unpredictable and can vary widely depending on the time of filing due to USCIS re-prioritization, case volume, regulatory changes or other factors.

An Applicant may file the I-140 Immigrant Petition and I-485 Application to Adjust Status simultaneously. But if an Applicant chooses simultaneous filing, s/he risks losing all legal and filing fees for the second step should the petition be unsuccessful, so we normally do not recommend simultaneous filing due to the uncertainty of USCIS adjudications. Simultaneous filing of both steps also allows for immediate work and travel authorization. However, again, we do not normally recommend this, as work and travel authorization immediately become invalid should an underlying I-140 Immigrant Visa Application (the first step of the NIW process) be denied, leaving an NIW applicant with no US immigration status at all.

If an entrepreneur wants to file for a National Interest Waiver (NIW), must s/he be a member of the professions holding an advanced degree or an individual of exceptional ability?

Yes. To qualify for an EB2 National Interest Waiver (NIW), an entrepreneur must show that s/he either a member of the profession holding an advanced degree or an individual of exceptional ability.

If an entrepreneur wants to file a National Interest Waiver (NIW), must s/he have a US employer?

No. Pursuant to INA 203(b)(2)(B), an entrepreneur does not need to have an actual job offer from a US employer IF he or she qualifies for a National Interest Waiver (NIW). That is, an entrepreneur may self-petition for an National Interest Waiver, thus filling the role of both petitioner and beneficiary. The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States.

What is “national interest”?

Applicable statutes and regulations do not define the term “national interest.” Neither did Congress specifically define the phrase in relevant legislative history. However, USCIS issued a precedent decision concerning the National Interest Waiver (NIW), Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998)(NYSDOT).

While NYSDOT does not involve an entrepreneur, it does not exclude entrepreneurs or self-employed beneficiaries from qualifying for the National Interest Waiver (NIW) under limited circumstances. Footnote 5 in the decision states:

The Service [USCIS] acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no US employer to apply for a [PERM] labor certification…[T]he petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field.

NYSDOT lays out a 3 part test for National Interest Waiver (NIW) applicants to qualify for a waiver of the job offer requirement.

What are the 3 prongs laid out in the NYSDOT decision?

NYSDOT‘s 3-part test:

1. An NIW applicant must seek employment in an area with substantial intrinsic merit.
2. An NIW applicant must show that the proposed benefit to the national interest will be national in scope.
3. An NIW applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the waiver applicant’s services by making available to US workers the position sought.

Overall, a National Interest Waiver Petitioner must establish that an entrepreneur will serve the national interest to a substantially greater degree than would an available US worker having the same minimum qualifications.

How does the first prong of NYSDOT relate to entrepreneurs?

Under the first prong of the NYSDOT test, an entrepreneur must seek employment in an area with substantial intrinsic merit. It is important for the entrepreneur to focus on the proposed employment rather than his or her own qualifications. In NYSDOT, for example, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit.

How does the second prong of NYSDOT relate to entrepreneurs?

The second prong of the NYSDOT test requires an entrepreneur to show that the proposed benefit will be national in scope. For example, an entrepreneur may be able to show that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, an entrepreneur may establish that jobs created locally will have a positive national impact. As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

How does the third prong of NYSDOT relate to entrepreneurs?

NYSDOT’s third prong is best understood in light of the PERM Labor Certification process and its presumptive benefit to the US. An individual seeking an exemption from PERM must present a national benefit so great as to outweigh the national interest inherent in the PERM process. NYSDOT’s third prong requires that an entrepreneur “present a significant benefit to the field of endeavor.”  The field should be the same as that identified in prong one of the analysis, and the entrepreneur must document how the entrepreneurial enterprise will benefit that field.

NYSDOT states: “In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”

An entrepreneur who demonstrates that his or her business enterprise will create jobs for US workers or otherwise enhance the welfare of the US may qualify for a National Interest Waiver (NIW). For example, an entrepreneur may not be taking a job opportunity from a US worker, but instead may be creating new job opportunities for US workers. The creation of jobs domestically for US workers may serve the national interest to a substantially greater degree than the work of others in the same field.

2. EB2 Immigrant Visa Category

What is the EB2 Immigrant Visa (IV) Category?

Congress created the EB2 preference visa category with the Immigration Act of 1990. EB2 includes:

  • Members of the professions holding advanced degrees or their equivalent; and,
  • Individuals who because of their exceptional ability in the sciences, arts, or business will “substantially benefit prospectively” the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.

Why is PERM required to qualify for an EB2 Immigrant Visa Category?

PERM exists to protect US workers and the US labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified US workers.

Can anyone with an advanced degree qualify for an EB2 Immigrant Visa?

No, not every individual with an advanced degree will qualify. The petition must show that the occupation is a profession; 8 CFR 204.5(k)(2) defines “profession” as any occupation for which a US baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. Occupations include but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries.

What is “exceptional ability” in the EB2 Context?

8 CFR 204.5(k)(2) defines exceptional ability as degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Where can I find US laws governing the Employment Based Second Preference (EB2) Immigrant Visa Category?

The US statutory requirements for the EB2 Immigrant Visa category are in the Immigration and Nationality Act (INA), Section 203(b)(2).  Regulatory requirements are at 8 CFR 204.5(k).

Can an entrepreneur qualify as a member of a profession holding an advanced degree?

Yes. An entrepreneur can qualify if the:

  • Entrepreneur will be working for a US employer who files a petition on the entrepreneur’s behalf;
  • Entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree;
  • Underlying position requires, at a minimum, a professional holding an advanced degree or the equivalent;
  • Petitioning employer has received an individual labor certification from the Department of Labor (DOL); and
  • Entrepreneur meets all the specific job requirements listed on the individual labor certification.

Can an entrepreneur qualify as an individual of exceptional ability in the sciences, arts, or business?

Yes.  An entrepreneur can qualify if s/he:

  • will be working for a US employer who files a petition on the entrepreneur’s behalf;
  • will be working in the sciences, arts, or business;
  • has exceptional ability in the sciences, arts, or business;
  • will substantially benefit the national economy, cultural or educational interests, or welfare of the United States;
  • the petitioning employer has received an individual labor certification from the Department of Labor; and
  • meets all the specific job requirements listed on the individual labor certification.

How can an entrepreneur establish exceptional ability in the sciences, arts, or business?

First, an entrepreneur must show that s/he meets at least 3 of the criteria at 8 CFR 204.5(k)(3)(ii):

(A) An official academic record showing that the EB2 beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability.
(B) Evidence in the form of letter(s) from current or former employer(s) showing that the EB2 beneficiary has at least 10 years of full-time experience in the occupation for which s/he is being sought.
(C) A license to practice the profession or certification for a particular profession or occupation.
(D) Evidence that the EB2 beneficiary has commanded a salary, or other remuneration for services, which demonstrates exceptional ability.
(E) Evidence of membership in professional associations. Or,
(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations

Subparagraph (A) above requires that an EB2 Beneficiary have a degree “relating to” the area of exceptional ability. The degree need not be in the same field of claimed exceptional ability, but only related to that field. For example, an entrepreneur who wants to start an internet-related business and who claims exceptional ability in that field might qualify with a degree in computer science, network technology, or certain areas of business.

Second, an entrepreneur must demonstrate that s/he has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

If an entrepreneur can’t provide documentary evidence that s/he meets at least 3 of the 6 regulatory criteria for exceptional ability, can s/he submit other evidence to demonstrate exceptional ability in the sciences, arts or business?

Yes. 8 CFR 204.5(k)(3)(iii), states:

If the above standards do not readily apply to the EB2 beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.

USCIS should give comparable evidence the same weight as evidence submitted in support of the criteria listed above. Irrespective of the type of evidence presented, an entrepreneur has the burden of proving, by a preponderance of the evidence (i.e. more likely than not), that his or her eligibility for EB2 visa classification. USCIS will take into account the totality of the circumstances when reviewing the evidence provided.

When presenting comparable evidence, an entrepreneur must explain how and why the regulatory criterion for which s/he is submitting comparable evidence does not readily apply to his or her occupation.

There is no limitation on the type of comparable evidence an entrepreneur may present; instead, USCIS focuses on the quality of the evidence presented and how it compares to the regulatory criterion for which it is being substituted. For example, the entrepreneur might demonstrate such past achievements as his or her successful history in obtaining venture capital funding from reputable sources, or his or her past participation in incubators (entities that provide resources, support, and assistance to entrepreneurs to foster the development and growth of an idea or enterprise) that have high evaluative standards for participation.

How does an entrepreneur show that he or she will “substantially benefit prospectively” the national economy, cultural or educational interests, or welfare of the United States?

Entrepreneurs should discuss which element(s), i.e, national economy, cultural or educational interest, or welfare of the United States, the entrepreneurial enterprise will benefit. For example, US educational interests may benefit from an entrepreneurial enterprise establishing tutoring instruction learning centers throughout the country.

As another example, an entrepreneur might demonstrate that at least one aspect of US welfare will be “substantially” better off were the entrepreneurial enterprise to be located in the US. “Welfare” as used by the statute is a broad concept and could refer to any number of areas.