The U.S. attracts talented individuals immigrating from all over the world to bring their expertise and start businesses here. The University of Illinois Urbana-Champaign, for example, welcomes one of the largest international student and scholar populations among U.S. public institutions. Those students and scholars help propel the development of science and technology and benefit the academia and the national economy. Many technology companies are started by international founders or rely in part on highly skilled specialists from abroad.
However complicated, the U. S. immigration laws offer many opportunities for international talent to come to this country. Generally speaking, there are three ways to immigrate (obtain permanent residence): (1) through employment/endeavor, (2) through family, and (3) through humanitarian programs/asylum.
A permanent resident status allows its holder to live and work permanently in the U.S. It is a step towards becoming a U.S. citizen. The permanent resident card is colloquially known as green card.
In this article, we will explore some of the most popular ways to obtain permanent residence through employment, endeavor, business, or talent. The application process usually consists of the following steps:
- Obtaining a labor certification with the Department of Labor (applicable for EB-2 and EB-3 visas that require a job offer from a U. S. employer),
- Filing an immigrant petition arguing the beneficiary’s eligibility for the immigration status,
- Filing an Adjustment of Status if the beneficiary is in the U. S. or applying for a visa stamp at a U. S. consulate abroad.
EB-1: First Preference Employment-Based Visas
“EB” in the name of a number of immigration visa categories indicates that they are employment-based.
The EB-1 visas are intended for individuals whose contribution to the U. S. economy is deemed the most valuable. It is a first-preference visa, meaning that it has the shortest issuance times compared to other kinds of employment-based visas (which may be critical for citizens of certain countries experiencing considerable backlogs, like China and India).
EB-1 visas are available to (A) noncitizens of extraordinary ability, (B) outstanding professors or researchers, or (C) certain multinational executives or managers. No labor certification is required in applying for these visas, but a job offer from a U. S. employer is required for the categories (B) and (C). Where a job offer is required, the employer must demonstrate a continuing ability to pay the beneficiary’s wage (through a federal income tax return, an annual report, or an audited financial statement).
EB-1A: Noncitizens of extraordinary ability
USCIS regulations define extraordinary ability as a “level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor.”
There are two ways to demonstrate extraordinary ability. One can show that they have received a major, internationally recognized award such as a Nobel Prize. The second and more common method is to show three of the following types of evidence:
- Receipt of lesser national or international prizes or awards for excellence in their field of endeavor
- Membership in associations in the field of endeavor that require outstanding achievements of their members
- Published material about the alien and their work in professional journals, trade publications, or the major media
- Participation, either in a group or alone, as a judge of others in the same or a similar field
- Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor
- Authorship of scholarly articles in the field, published in professional journals or the major media
- Display of the foreign national’s work at artistic exhibitions or showcases in more than one country
- Performance in a lead, starring, or critical role for organizations with a distinguished reputation
- Commanding a high salary compared to others in the field
- Commercial success in the performing arts, as shown by box office receipts and sales
- Receipt of lesser national or international prizes or awards for excellence in their field of endeavor.
Although the eligibility criteria for this visa category are arguably the highest of all immigrant visas, the notable advantage of the EB-1A visa is that the beneficiary can self-petition.
Example: The EB-1A visa could be suitable for an outstanding founder of a successful startup that developed a product with a great impact in a particular industrial/ scientific field. We would conduct a deep analysis of what the client’s company does and how it solves an important unmet need. We would then refer to the client’s patented technology, evidence of commercial success and attracted venture capital, participation in incubator programs, publications in reputable journals, coverage in major media, and numerous expert opinions in attesting to the significance of the client’s contribution to the field. We would need to go into specific detail to prove that the client’s spectacular business acumen and remarkableness as an expert attest to their rising to the top of their field.
EB-1B: Outstanding professors and researchers
To be eligible, professors and researchers must demonstrate international recognition for their outstanding achievements in a particular academic field. Beneficiaries must have at least 3 years’ experience in teaching or research in that academic area and be entering the United States on a job offer of tenure or tenure track teaching or a comparable research position at a U. S. university, institution of higher education, or private employer (it must show documented accomplishments and that it employs at least 3 full-time researchers).
In addition, the beneficiary must meet at least 2 of the following criteria:
- Evidence of receipt of major prizes or awards for outstanding achievement
- Evidence of membership in associations that require their members to demonstrate outstanding achievement
- Evidence of published material in professional publications written by others about the noncitizen's work in the academic field
- Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
- Evidence of original scientific or scholarly research contributions in the field
- Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.
EB-1C: Certain multinational manager or executive
To qualify for the EB-1C visa, the beneficiary must have been employed outside the U. S. for at least 1 year in the 3 years preceding the petition or the most recent legal entry in the U. S. if already working for the U.S. petitioning employer. The U.S. petitioner must have been doing business for at least 1 year, have a certain affiliation to the entity for which the beneficiary worked for outside the U.S., and offer a managerial or executive position to the beneficiary.
EB-2: Second Preference Employment-Based Visa
Second Preference Employment-Based visas are available to professionals with advanced degrees or exceptional ability.
Generally, the EB-2 visa requires a job offer from a U. S. employer and a labor certification with the DOL, which is a process intended to ensure that U. S. workers will not be adversely affected by admission of the noncitizen in the U. S.
The job being offered to the noncitizen must must require an advanced degree (which the beneficiary must possess (in the absence of an advanced degree, a baccalaureate or foreign equivalent degree plus 5 years of post-completion work experience in the field are acceptable).
The beneficiary may still qualify without the above degree or work experience if they can show exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” At least three of the following are required to prove that:
- Official academic record showing that the noncitizen has a degree, diploma, certificate, or similar award from a college, university, school, or other institution relating to the area of exceptional ability
- Letters from current or former employers documenting at least 10 years of full-time experience in the occupation
- A license to practice the profession or certification for the profession or occupation
- Evidence that the noncitizen has commanded a salary or other remuneration for services that demonstrates their exceptional ability
- Membership in a professional association(s)
- Recognition for the noncitizen’s achievements and significant contributions to their industry or field by your peers, government entities, professional or business organizations
- Other comparable evidence of eligibility is also acceptable.
Example: Employers can seek an EB-2 visa for highly skilled employees whose positions require advanced degrees (for example, Master’s, PhD, JD) or whose experience or contributions to the industry attest to their exceptional ability. Some of such employees could be engineers, lawyers, architects, scientists. If the role requirements do not rise to this level, a lower-preference EB-3 visa can be more suitable for the employee. That visa also requires a job offer and going through labor certification.
EB-2 National Interest Waiver
An otherwise EB-2 eligible beneficiary with an advanced degree or exceptional ability can self-petition and request a waiver of labor certification and a job offer requirements if they can prove that doing so would be in the national interest of the U. S.
There are no statutorily defined endeavors that qualify for the waiver, but the USCIS officer will consider the following factors in adjudicating the case:
- The proposed endeavor has both substantial merit and national importance.
- The beneficiary is well positioned to advance the proposed endeavor.
- On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.
The endeavor’s merit may be demonstrated in areas including, but not limited to, business, entrepreneurship, science, technology, culture, health, or education. National interest in waiving the labor certification may be proven by evidence relating to one or more of the following factors:
- The impracticality of a labor certification application (for example, if the beneficiary seeks to be self-employed or employ American workers);
- The benefit to the United States from the prospective noncitizen’s contributions, even if other U.S. workers were also available; and
- The national interest in the person’s contributions is sufficiently urgent, such as U.S. competitiveness in STEM fields.
Example: The EB-2 visa with a National Interest Waiver of a job offer requirement could be suitable for clients whose accomplishments, although important, do not rise to the level of EB-1 visa standards. Successful petitioners include PhD holders and candidates in STEM, startup founders, small business owners, renowned artists, and authors. We would need to examine the client’s proposed endeavor in detail and see how it can be beneficial to the U. S. economy, contribute to the development of a body of knowledge, or could have a useful cultural impact. We would use various evidence, such as a detailed business plan, evidence of advanced degrees or exceptional ability, the petitioner’s scholarly publications, expert evidence (including recommendation letters), market analysis, evidence that the client’s cultural contributions are highly regarded, or other documentation attesting to the client’s positive potential prospective impact on the U. S.
EB-5: Immigrant Investor Program
Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. In 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program, which sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS based on proposals for promoting economic growth.
Under this program, investors are eligible to apply for a Green Card (permanent residence) if they:
- Make the necessary investment in a commercial enterprise in the United States (from $500,000 or $1,000,000, depending on the area in which the investment is made); and
- Plan to create or preserve 10 or more permanent full-time jobs for qualified U.S. workers.
International Entrepreneur Parole
Unlike the rest of the options discussed in this article, International Entrepreneurship Parole is not an immigration status, but rather grounds for authorized stay in the U. S. independent of any other status.
Entrepreneurs applying for parole under this rule must demonstrate that they:
- Possess a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
- Have a central and active role in the start-up entity such that they are well-positioned to substantially assist with the growth and success of the business.
- Will provide a significant public benefit to the United States based on their role as an entrepreneur of the start-up entity by showing that:
- The start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
- The start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
- They partially meet either or both of the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
- Otherwise merit a favorable exercise of discretion.