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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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Entrepreneurial Visa Options

The H1-B Entrepreneur

It is very much possible to hold a managerial position of a company you helped establish with a H1-B visa. On August 2, 2011, Secretary of Homeland Security Janet Napolitano and USCIS announced many immigration initiatives designed to boost the economy. The most notable one included a policy shift to allow a H1-B visa holder to have a majority or even 100% stake in his or her own company, including as a sole employee, as long as he or she can demonstrate that the company has the right to control the entrepreneur’s employment. Some examples include preferred shareholders or a separate Board of Directors that control the terms and conditions of the entrepreneur’s employment.

E-1 Treaty Trader and E-2 Treat Investor

Both the E-1 Treaty Trader and E-2 Treaty Investor applicant must be a national of one of the qualifying treaty countries, found here on the Department of State’s website. Noticeably, major countries such as India do not make it onto this list. Both visas have no limit on their issuance, are valid for two years and can be extended in two-year increments indefinitely. Both the E-1 Treaty Trader and E-2 Treaty Investor must be employed in a supervisory or executive role or have specialized skills are essential to the efficient operation of the business.

For an E-1 Treaty Investor, both the applicant and the trading firm must be of the same nationality of a qualifying treaty county (for a full list, see below). The company must be at least 50% owned by nationals of the treaty company. The international trade must be a sizable and continuing volume of trade between the countries and more than 50% of the total volume of the company’s international trade must be between the two countries. The applicant him/herself must be employed in a supervisory or executive capacity or possess highly specialized skills essential to the efficient operation of the company. “Ordinary” skilled or unskilled workers do not qualify.

For an E-2 Treaty Investor, the investment must be sufficient to ensure the successful operation of the enterprise, and “at risk,” meaning that there is a risk of loss (i.e. not a guaranteed loan). The investment must be in a functioning, real enterprise and do more than just provide passive income to the investor. E-1 Treaty Trader, the E-2 Treaty Investor

L-1 Intra-Company Transferee

The L-1 visa is a nonimmigrant visa that allows for established foreign companies to send managers, executives, and “key knowledge” employees to work in American branches, subsidiaries, or affiliates. The L-1 visa is split into two types: the L-1A visa for managers or executives, and L-1B visa for employees with “key knowledge” of the business’s products or processes. For both types of L-1 visas, they must be employed on a full-time basis. Conveniently, there is no numerical cap on L-1 visa issuances. It is possible to eventually petition for an immigrant visa (i.e. a green card) under either the EB-1 Multinational Manager and Executives option or the one of the EB-2 options, depending on the circumstances.

O-1 Individuals with Extraordinary Ability or Achievement

Individuals with extraordinary talents in the sciences, arts, education, business, or athletics may have the ability to continue in those fields while residing in the United States. While the eligibility criteria appears daunting – USCIS describes it as “a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.” , many entrepreneurs are successfully using the O visa to work for their own start-up companies. An entrepreneur could demonstrate that 1) there are published articles about their business/skill in major media; 2) a high salary evidenced by contracts; and 3) employment in a critical or essential capacity for organizations with distinguished reputations. The full list is on the same page linked immediately above. O Visa beneficiaries can stay for 3 years initially and then must apply for one year extensions after.

EB-5 Immigrant Investor

The EB-5 immigrant visa is the only option that provides a “green card” directly. Applicants can choose to directly invest in a business or pool their funds through a Regional Center; a Regional Center is a specially designated investment vehicle company that’s meant to manage and pool EB-5 funds. Some examples of popular investment projects include commercial and residential real estate, hotel development, and green energy production. Although the investment minimum requirement can vary from $500,000 to $1,000,000, the basic requirement is that each investment must create 10 full-time jobs in 2 years from the full infusion of the EB-5 investment.


Although these may seem like there are many different options for someone to start up their own business, as we noted in our last post there are many hurdles and issues that require an experienced business immigration attorney. These issues include basic financial milestones such as coordinating with professional consultants, drafting a business plan, incorporating your company, and of course navigating through the confusing immigration system’s own requirements. Contact our office to learn more and for assistance in starting up your own venture!

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