Immigrant Pathways for Entrepreneur Employment in the U.S.

Immigrant pathways allow you to work in the U.S. as an entrepreneur on a permanent basis because they offer lawful permanent residence, which can ultimately lead to U.S. citizenship.

Depending on the employment-based immigrant visa classification sought, acquiring lawful permanent residence via an immigrant pathway for entrepreneur employment involves at least two steps.

The process of Filing an Immigrant Visa Petition

You must file an immigrant petition with USCIS. If you are in the U.S. and eligible, you may file an adjustment of status application with the USCIS without leaving the United States. You can also file an immigrant visa application with the U.S. Department of State outside the U.S. and go through consular processing.

An approved immigrant visa petition helps secure your priority date, which will then determine the order of immigration visa availability. A priority date typically means the date the immigrant visa petition was filed.

According to USCIS, you may only request a visa through a consulate or apply for an adjustment of status once an immigrant visa is immediately available.

However, if an immigrant visa is available when filing your immigrant petition, you may concurrently apply for an adjustment of status. You are also allowed to apply for employment authorization concurrently with your adjustment of status.

The availability of an immigrant visa depends on the employment-based visa classification sought and the immigrant’s country of charge ability. Check out the USCIS website for more information about Visa Availability and Priority Date

EB-1A – Extraordinary Ability Immigrant Classification

The EB-1A pathway is an immigrant entrepreneur entry pathway to work and live in the United States as a lawful permanent resident. It is most appropriate for individuals with extraordinary abilities in sciences, education, arts, athletics, or business as demonstrated by sustained national or international acclaim and achievements recognized in the relevant field of expertise.

Besides proving your extraordinary ability, you must show that you intend to continue working in your area of expertise and that your work will benefit the future of the United States.

The term “extraordinary ability,” as used in this context, means a level of expertise indicating that you are one of a small percentage of people who have risen to the very top of your field.

Since no job offer, employer or labor certification is required for this immigrant certification, you may self-petition as an extraordinary-ability individual

Eligibility Requirements for EB-1A

Below is a detailed guideline on the eligibility requirements that you must establish to acquire an EB-1A visa status:

Below is a detailed guideline on the eligibility requirements that you must establish to acquire an EB-1A visa status:

The EB-1A is reserved for people recognized as the cream of their field and who are coming or choosing to remain in the U.S. to work in that field. To establish eligibility, you must demonstrate national or international acclaim and achievements recognized in your field of expertise. This is done by showing that:

1. You have received a major internationally recognized award
2. You meet at least three of the ten requirements listed below, and all your evidence indicates that you are among the top talents in your field.

Suppose you are yet to receive a major internationally recognized award. In that case, you can still qualify if you answer yes and submit supporting evidence for at least three of the following ten questions:

1. Are you a member of any association that requires outstanding achievements for their members as judged by recognized national or international experts?
2. Have you received any lesser nationally or internationally recognized awards or prizes for excellence in your field of endeavor?
3. Is there published material about you in major or professional trade publications or major media related to your work in the field?
4. Have you made original scholarly, scientific, or business contributions of major significance?
5. Have you participated individually or on a panel as a judge of the work of others in your field or an allied field of specialization?
6. Has your work been displayed at artistic showcases or exhibitions?
7. Have you authored scholarly articles in professional journals or other major media?
8. Have you enjoyed commercial successes in the performing arts?
9. Have you or will you command a high salary or other remuneration for your services compared to others in your field?
10. Have you played a critical or leading role in an organization with a distinguished reputation?

Answering yes to at least three of these questions proves that you possess extraordinary ability in your field of expertise. If the above criteria do not apply to your occupation, you may submit comparable evidence establishing your eligibility. However, it is worth noting that there is no comparable evidence for the one-time achievement of a major, internationally recognized award.

Once the USCIS is convinced that you meet these minimum threshold requirements, it will proceed to evaluate all your evidence in totality to determine:

1. Whether you have sustained national or international acclaim and recognized achievements in your area of expertise; and
2. Whether you form part of a small percentage of people who have risen to the very top of your field. For more details about how EB-1A eligibility is evaluated, read the USCIS Policy Manual, which includes an appendix chart describing considerations relevant to evaluating evidence under each criterion mentioned above and evaluating comparable evidence

Requirement 2: You must establish that you are coming or remaining in the U.S. to continue working in your area of extraordinary ability, and your entry will substantially benefit the U.S.

Some of the evidence you may rely on to meet this requirement includes, but is not limited to:

1. Documents showing your prearranged commitments, such as contracts
2. Letters from prospective or current employers
3. A statement detailing your plans to continue to work in your field in the U.S.

EB-2 Employment-Based Second Preference with National Interest Waiver (Exceptional ability or advanced degree professional with NIW)

The EB-2 immigrant visa is one of the available pathways for entrepreneurs looking to live and work in the United States. This pathway is intended for:

• Professionals with advanced degrees
• Individuals with exceptional abilities in sciences, business, or arts.

This visa classification requires a job offer and a labor certification issued by the U.S. Department of Labor (DOL). You must first meet this requirement for your employer to move on to the next step of filling your immigrant visa petition with the USCIS and (if approved) before a beneficiary could be issued an immigrant visa through consular or adjustment processing.

DOL regulations prohibit the issuance of labor certifications for self-employment. However, if you seek an EB-2 visa status with a National Interest Waiver (NIW), you may self-petition and not be subject to the labor requirement. When requesting a

NIW, you must demonstrate that you are either an individual of exceptional ability or a member of the profession holding an advanced degree. More guidelines concerning the labor certification process are readily available on DOL’s website.

Requirements for Advanced Degree Professionals

There are generally two broad requirements for this category of EB-2 visa applicants. These requirements are:

Requirement 1: You must show that you hold a U.S. advanced degree or equivalent foreign degree

The term “advanced degree’ implies a professional or academic degree above a bachelor’s degree. Admissible evidence that you can use to demonstrate that you have an advanced degree may include the following:

• Certified copies of the actual certificate, diploma, degree, or similar award
• Copies of the official transcript
• An evaluation from an educational evaluation agency, if you obtained your degree outside the United States
• Any other official documentation from the school’s Office of the Registrar
• If you have a U.S bachelor’s degree (or foreign equivalent), a letter from your current or prior employers indicating at least five years of progressively responsible experience in your field after receiving the degree

For more information about how the USCIS determines eligibility for advanced degree professionals, check out the USCIS Policy Manual.

Requirement 2: Your advanced degree must be related to the field in which you intend to work in

Some of the supporting evidence you may submit to establish that your advanced degree is related to your field included, but is not limited to:

• Documents describing your company and its work;
• A letter from you or your prospective employer describing your current or proposed job; and
• A copy of your company’s annual report, if one is issued.

Requirements for Individuals with Exceptional Ability

There are generally two broad requirements for this category of EB-2 applicants. These requirements are:

Requirement 1: You must demonstrate that you have exceptional ability in business, sciences, or arts

To qualify for this classification, you must show exceptional ability in business sciences or arts. The initial evidence must include at least three of the six types of evidence listed below.

You must answer yes and adduce supporting evidence for at least three of the following questions:

1. Do you have at least ten years of full-time experience in your field?
2. Have you received a certificate, diploma, degree, or similar award from a university, college, school, or other relevant institution relating to the field of exceptional ability?
3. Do you have certification or a license to practice in your occupation or profession if required?
4. Are you a member of professional associations
5. Have you or will you command a higher salary or other remuneration for your services, demonstrating your exceptional ability?
6. Have you been recognized for significant contributions to or achievements in the field?

If the above criteria do not apply to your occupation, you may submit comparable evidence to establish your eligibility.

Upon meeting the minimum threshold requirements, USCIS will evaluate all your submitted evidence in its totality to determine whether you have a degree of

expertise significantly higher than that normally encountered in business, sciences, or arts. Refer to the USCIS Policy Manual for detailed guidance on how USCIS determines your eligibility for exceptional ability classification.

Requirement 2: You must show that you will substantially benefit the U.S. welfare, U.S. economy, U.S. educational interests, or U.S. cultural interests prospectively.

To show prospective benefit, you must submit evidence of a record of achievements and explain how that indicates your future success. Qualifying or admissible evidence that you can submit to make this demonstration includes, but is not limited to:

• Published reports about your success;
• Documents showing how your past accomplishments benefit the U.S. and specifying which element(s) (welfare, national economy, cultural, or educational interests of the United States) your entrepreneurial enterprise will benefit;
• Letters from former or current employers documenting your prior work experience, including information about your accomplishments, their significance and how these accomplishments benefit the U.S.;
• Copies of awards or special recognitions you may have received, with details about the criteria used to grant the recognition or award;
• Letters from experts in your field regarding your accomplishments and their significance, including how your work will prospectively benefit the U.S.; and
• Evidence of past achievements accompanied with explanations or documentation of how these accomplishments indicate continued or future success.

National Interest Waiver (NIW)

The USCIS reserves the right, as a matter of discretion, to grant your request for a National Interest Waiver IF the following requirements are met:

1. You are well-positioned to advance the proposed endeavor.
2. Your proposed endeavor has both national importance and substantial merit.
3. On balance, it would be beneficial to the U.S. to waive the requirements of a job offer and, subsequently, the labor certification requirements.

The USCIS Policy Manual outlines detailed guidelines on how to evaluate eligibility for NIWs based on the requirements mentioned above. The policy also discusses the specific evidentiary considerations for entrepreneurs.

The USCIS is not oblivious to the fact that entrepreneurs do not always follow traditional career paths and that start-ups vary in structure. Therefore, in addition to the general guidance, the USCIS Policy Manual clarifies that as an entrepreneur petitioner, you are free to submit other forms of evidence to help establish the following:

• That your endeavor has national importance and substantial merit;
• That you are well-positioned to advance the endeavor;
• That on a balance, it would be beneficial to the United States to waive the job offer requirement and, thus, the associated labor certification requirements.

EB-5 – Immigrant Investor Program

The U.S. Congress created the EB-5 Immigrant Investor Program intending to stimulate the U.S. economy through capital investment and job creation by foreign investors.

This category of immigrant entrepreneur visas targets individuals investing in their own businesses. USCIS’s page About the EB-5 Visa Classification explains how investors can pool their investments through the Regional Center Program.

What Investment is Required?

To qualify for this visa pathway, you must invest at least $1.05 million in a new commercial enterprise established after November 29, 1990, unless the entity is operating in a targeted employment area, which is an area with a high

unemployment rate or in a rural area. For a targeted employment area, the minimum investment amount is $800,000.

You must also establish that your investment capital is lawfully obtained.

What Job Creation is Required?

You must show that the new commercial entity will create full-time job positions for at least ten qualifying employees.

Are There Any Requirements after I Become A Permanent Resident?

Immigrant entrepreneurs are admitted as lawful permanent residents but on a conditional basis. However, you must apply to remove the condition on your visa status 90 days before the second anniversary of obtaining conditional lawful permanent resident status.

Sources

The U.S. Citizenship and Immigration Service (USCIS) https://www.uscis.gov/working-in-the-united-states/entrepreneur-employment-pathways/immigrant-pathways-for-entrepreneur-employment-in-the-united-states