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Exceptional Immigrants – The EB-2 Visa and National Interest Waivers

Our last article was about the EB-1 Visa, which is set aside for “Aliens of Extraordinary Ability.” We now look at the complicated world of EB-2 Visas and National Interest Waivers.

As an initial matter, the EB-2 visa is broken down into two categories: (1) persons with exceptional ability in the sciences, arts, or business; and (2) persons who are members of the professions holding advanced degrees or their equivalent. Visas in both categories count towards the 40,000 visa cap as well as any leftover from the EB-1 category. Currently, as of the March 2013 visa bulletin, there are waiting lists for immigrants from China and India.

Going back to the two EB-2 categories, a person with exceptional ability is defined as satisfaction of at least three of the following requirements:

  1. An official academic record showing the alien 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;
  2. Letters documenting at least ten years of full-time experience in the occupation being sought;
  3. A license to practice the profession or certification for a particular profession or occupation;
  4. Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;
  5. Membership in professional associations;
  6. Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

An advanced degree professional is defined as someone who holds an advanced degree such as a Ph.D. or Masters, or must hold a baccalaureate degree and have five years of experience in his or her specialty.

The National Interest Waiver (“NIW”) mentioned above is a waiver of the job offer requirement and the Labor Certification Application (“LCA”) requirement. A job offer may be difficult to secure in time for filing and the LCA process can be tedious and time-intensive both for attorneys and for USCIS to process. Thus, a NIW is in the best interest of speed and efficiency and frequently accompanies EB-2 visa petitions. To satisfy the NIW requirements, one must demonstrate three basic requirements:

  1. He or she is seeking work in an area of substantial intrinsic merit to the U.S. The applicant’s work should benefit U.S. healthcare, economy, security or some other important aspect.
  2. The benefit from the candidate’s proposed activity will be national in scope. It will benefit the entire U.S. population, and not just a particular area.
  3. The national interest would be adversely affected if a Labor Certification were required for the applicant. There would be negative consequences if the applicant’s work were interrupted due to the lengthy Labor Certification process; or the applicant possesses exceptional qualifications which would not be reflected in the certification process and which U.S. workers minimally qualified for the same job would lack.

While the requirements appear challenging and onerous, they may not always be such. To demonstrate that the applicant’s work benefits the US, we need not show a direct, immediate impact on a national scale. It is sufficient of the work will indirectly contribute to the benefit of the nation as a whole. For example, the work of a civil engineer engaged in the construction of a bridge benefits the national economy (even though the bridge is local), while the work of a teacher benefits the local community. Further, for NIW purposes, the field matters more than the individual’s experience. As an example, it is generally easier to argue for a cancer researcher than an experienced web blogger even though both persons may be accomplished in their fields. .

The arguments and the processes involved can be complicated and require an experienced attorney to navigate. Contact our office if you have any questions regarding the EB-2 visa or any of your immigration issues.

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Extraordinary and Outstanding Immigrants – the EB-1 Visa

Although the Employment Based (“EB”) categories may change with the new CIR bill introduced just several weeks ago, there is no guarantee that the EB changes or the bill in its entirety will pass. Therefore, it’s necessary to still consider the immigration options as they are. The EB-1 visa is a popular method for highly skilled and educated noncitizens to obtain their green cards, but it may be quite the process for those not in the know.

The EB-1 visa can be split up into three categories: EB-1A is for Aliens of Extraordinary Ability, EB-1B is for Outstanding Researcher or Professors, and EB-1C Managers and Executive Transferees. Under any of these categories, the noncitizen will most likely experience the quickest processing times and avoid the Labor Certification process.

EB-1A – Aliens of Extraordinary Ability

Noncitizens seeking the EB-1A visa must have an extraordinary ability in the sciences, arts, education, business, or athletics with sustained national or international acclaim. The noncitizen must start or continue work in an area that will also substantially and prospectively benefit the U.S. national interest. To prove this, the noncitizen must satisfy at least three of the ten criteria as listed below:

  1. Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
  2. Evidence of your membership in associations in the field which demand outstanding achievement of their members
  3. Evidence of published material about you in professional or major trade publications or other major media
  4. Evidence that you have been asked to judge the work of others, either individually or on a panel
  5. Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  6. Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
  7. Evidence that your work has been displayed at artistic exhibitions or showcases
  8. Evidence of your performance of a leading or critical role in distinguished organizations
  9. Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
  10. Evidence of your commercial successes in the performing arts


The benefit of the EB-1A visa is that no permanent position is required; a permanent position is required for EB-1B and EB-1C visas.

EB-1B – Outstanding Researcher or Professor

The EB-1B visa requires international recognition for achievements in a particular academic field. The noncitizen must have at least 3 years of experience in teaching or research in that academic area. The position required must be a permanent, tenure or tenure track teaching or comparable research position at a university or other institution of higher education. To prove this, at least two of the listed documents are required:

  1. Evidence of receipt of major prizes or awards for outstanding achievement
  2. Evidence of membership in associations that require their members to demonstrate outstanding achievement
  3. Evidence of published material in professional publications written by others about the alien’s work in the academic field
  4. Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
  5. Evidence of original scientific or scholarly research contributions in the field
  6. Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

The strategic benefit of the EB-1B option is that the noncitizen’s particular accomplishments are the focus rather than the field of study thus allowing for more flexibility.

EB-1C – Multinational Manager or Executive

The EB-1C visa is meant for high level executives whose expertise is needed here in a United States branch or office of the same company. Specifically, the noncitizen must be employed for at least one of the three years before the petition and must be entering to continue employment in that same firm or organization. The employment in the United States must be in a managerial or executive capacity and with the same employer, affiliate, or subsidiary of the employer.

For the employer, it must be a U.S. employer who has been doing business for at least one year as an affiliate, subsidiary, or as the same corporation or other legal entity that employed the noncitizen abroad.

If one of these categories works for you, contact our office to schedule an appointment to explore any of these or other immigration options.

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CIR’s Startup Entrepreneur Visa

The discussion and debate around the proposed Immigration Reform bill continues. One of the positive talking points, especially in Silicon Valley, is around the possibility of a startup visa. Titled “Investing in New Venture, Entrepreneurial startups and Technologies,” it provides path(s) for those seeking both temporary (nonimmigrant visa) and permanent (immigrant visa) residence in the United States.

Regardless of the path taken, the foreign national must be a “qualified entrepreneur,” which means a person must:

1.Have a significant ownership in a U.S. business employed in a senior executive position
3.Submit a business plan to USCIS; and
4.Have a substantial role in the founding or early stage growth and development of the US business entity.

Nonimmigrant Visa

For those seeking the nonimmigrant/temporary visa, there is an initial admission period for three years. The nonimmigrant visa can be renewed every three years as long as the business owned by the foreign national:

1. Created at least 3 full-time jobs AND received a $250,000 qualified investment; OR
2. Created at least 3 full-time jobs AND during the 2 year period ending on the date of the extension applied for generated at least $200,000 in annual revenue.

One of the above two requirements may be waived and a renewal for a up to 2 one-year period (instead of 3) may be granted if the foreign national has made substantial progress in his business and that granting a renewal is economically beneficial to the United States.

Immigrant Visa

There are two types of immigrant visas. Both require that the foreign national be a qualified entrepreneur, as defined above, and both require that the foreign national maintain a non-immigrant status in the US for a period of time. This is a welcome move as it may finally open the door for F- 1/ student visa and H-1B temporary visa holders to start their own businesses and get green cards. Beyond that, however, there are many differences.

Under the first kind of immigrant visa, the foreign national must maintain a valid non-immigrant status (F-1, H-1B, etc.) in the US for at least 2 years. To obtain an extension, the foreign national (1) must have a significant ownership in a US business entity that has created at least 5 full-time jobs AND has received $500,000 qualified investment in his business; OR (2) must have a significant ownership in a US business entity that has created at least 5 full-time jobs AND generated at least $750,000 annual revenue during the last 2 year period AND no more than 2 other aliens have received non-immigrant investment visas on the basis of the foreign national’s ownership of such business.

Under the second type of the entrepreneurial immigrant visa, the foreign national must maintain a valid non-immigrant status (F-1, H-1B, etc.) in the US for at least 3 (not 2) years prior to filing for such status AND hold an advanced science, technology, engineering, or mathematics degree. To obtain an extension, the foreign national must have a significant ownership interest in a US business that created at least 4 full-time jobs AND received qualified investment of at least $500,000. Alternatively, an extension can be obtained if the foreign national’s business created at least 3 full time jobs AND during the 2-year period generated at least $500,000.

These provisions, if passed, will generate more options for foreigners to contribute to the American economy while realizing their own version of the American dream. Although this is ideal for many people who want legal permanent residence through this route, the provisions are complex and will require a combination of knowledge in immigration, corporate, and securities law.Contact our officeif you would like to discuss these provisions or if you want to discuss any of the current entrepreneurial options in effect today.

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