Immigrant Pathways for Entrepreneur Employment in the United States

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Immigrant pathways offer opportunities to work in the United States for a range of reasons on a more permanent basis. They provide lawful permanent residence (Green Card), which can eventually lead to U.S. citizenship.

The lawful permanent resident process involves at least two steps, depending on the employment-based immigrant visa classification sought. An immigrant petition must be filed with USCIS, and then, if you are in the United States and eligible, you may file an adjustment of status application with USCIS without departing the United States, or you may file an immigrant visa application with the U.S. Department of State (DOS) outside the United States and go through consular processing.

An approved immigrant visa petition secures your priority date, which will determine the order of immigrant visa availability. Your priority date is generally when the immigrant visa petition was filed on your behalf. You may only file an adjustment of status application or request a visa through a consulate once an immigrant visa is immediately available. If an immigrant visa is immediately available when you or your sponsoring employer files the immigrant petition with USCIS, you may file your adjustment application at the same time. You can apply for employment authorization concurrently with your adjustment application while your application is pending.

The availability of an immigrant visa will depend on the employment-based classification being sought and the immigrant’s country of chargeability (usually the country of birth).

The USCIS webpages on Visa Availability, Priority Dates and Consular Processing provide information about the DOS Visa Bulletin process and explain how DOS generally allocates immigrant visas and consular processing.

EB-1A – Extraordinary Ability

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

EB-5 – Immigrant Investor Program

EB-1A – Extraordinary Ability

You may be eligible for the EB-1A extraordinary ability immigrant classification if you have extraordinary ability in the sciences, arts, education, business, or athletics as demonstrated by sustained national or international acclaim and recognized achievements in the field of expertise. In addition, you must show that you will continue working in your area of extraordinary ability and that your work will substantially benefit the United States in the future. Extraordinary ability means that your level of expertise indicates that you are one of the small percentages of individuals who have risen to the very top of your field. You may self-petition as an extraordinary-ability individual because a job offer is not required for this classification.

Requirement 1 – You must be able to establish that you have extraordinary ability in your field.

The EB-1A extraordinary ability classification is for people recognized as being at the very top of their field and coming to (or remaining in) the United States to continue work in that field. To establish eligibility, you must demonstrate sustained national or international acclaim and that your achievements have been recognized in the field of expertise by showing that you:

• Have received a major internationally recognized award; or
  Meet at least three of the ten requirements listed below, and all your evidence, when evaluated together, shows that you are among the small percentage of individuals that have risen to the very top of your field.

If you have not received a major internationally recognized award, you must answer yes and submit evidence for at least three of the ten questions below:

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

Note: If the criteria discussed in this section do not readily apply to your occupation, you may submit comparable evidence to establish your eligibility. However, there is no comparable evidence for the one-time achievement of a major, internationally recognized award.

If you meet these minimum threshold requirements, USCIS will then evaluate all the evidence you submitted in its totality to determine whether you have sustained national or international acclaim and recognized achievements in your field of expertise and that you are one of the small percentages of individuals who have risen to the very top of your field.

The USCIS Policy Manual includes detailed guidance regarding how EB-1A eligibility is evaluated, including an appendix chart that describes considerations relevant to evaluating evidence under each of the above criteria and evaluating comparable evidence.

Requirement 2 – You must be able to establish that you are coming to (or remaining in) the United States to continue to work in your area of extraordinary ability, and your entry will substantially benefit the United States.

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

Letters from current or prospective employers;
Documents evidencing your prearranged commitments (e.g., contracts); and
A statement detailing your plans to continue to work in your field in the United States.

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

The EB-2 immigrant visa category is for noncitizens who are professionals with advanced degrees or individuals with exceptional ability in the sciences, arts, or business. This category generally requires a job offer and a labor certification issued by the U.S. Department of Labor (DOL) before an employer can move on to the next step of filing an immigrant visa petition with USCIS and (if approved) before a beneficiary can be issued an immigrant visa through adjustment or consular processing. Please visit DOL’s website to learn more about the labor certification process.

DOL regulations generally prohibit the issuance of labor certifications in self-employment scenarios. However, an entrepreneur seeking EB-2 classification and a National Interest Waiver (NIW) may self-petition and not be subject to the labor certification requirement. Accordingly, one option for entrepreneurs includes filing an EB-2 visa petition if they can qualify for an NIW, which exempts them from the job offer requirement and, thus, the labor certification requirement.

If you are requesting an NIW, you must first demonstrate that you are either a member of the profession holding an advanced degree or an individual of exceptional ability.

Advanced Degree Professionals

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

An “advanced degree” is an academic or professional degree above a bachelor’s. Some of the evidence you may submit to demonstrate that you have an advanced degree may include the following:

Copies of official transcripts;

• Certified copies of the actual degree, diploma, certificate, or similar award;
• Any other official documentation from the school’s Office of the Registrar;
• An evaluation from an educational evaluation agency if you obtained your degree outside the United States; and

If you only have a U.S. bachelor’s degree (or foreign equivalent), letters from your current and/or prior employers show at least five years of progressively responsible experience in your field after receiving the degree.

The USCIS Policy Manual includes detailed guidance on determining eligibility for advanced degree professionals.

Requirement 2 – Your advanced degree must be related to the field in which you will be working.

Some of the evidence you may submit to demonstrate that your advanced degree relates to your field includes, but is not limited to:

A letter from you or your prospective employer describing your current or proposed job;

Documents describing your company and its work; and

A copy of your company’s annual report, if one is issued.

Exceptional Ability

Requirement 1 – You must show exceptional ability in the sciences, arts, or business.

To qualify for the EB-2 exceptional ability classification, you must show exceptional ability in the sciences, arts, or business. The initial evidence must include at least three of the six types of evidence listed below. If you meet the minimum threshold requirements, USCIS will evaluate all the evidence you submitted to determine whether you have a degree of expertise significantly above that normally encountered in the sciences, arts, or business. You must answer yes and submit evidence for at least three of the six questions below:

• Have you received a degree, diploma, certificate, or similar award from a college, university, school, or other institution relating to the field of exceptional ability?
• Do you have at least ten years of full-time experience in your field?
• Do you have a license or certification to practice in your profession or occupation if required?
• Have you or will you command a high salary or other remuneration for your services, demonstrating your exceptional ability?

Are you a member of professional associations?

Have you been recognized for achievements and significant contributions to your industry or field?

Note: If any of the criteria discussed in this section do not readily apply to your occupation, you may submit comparable evidence to establish your eligibility.

If you meet these minimum threshold requirements, USCIS will then evaluate all the evidence you submitted in its totality to determine whether you have a degree of expertise significantly above that normally encountered in the sciences, arts, or business.

The USCIS Policy Manual includes detailed guidance on eligibility for exceptional ability classification.

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

A prospective benefit is generally shown by documenting a past record of achievements and explaining how that indicates your future success.

Some of the evidence you may submit to demonstrate how you will substantially benefit the United States prospectively includes but is not limited to:

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

National Interest Waiver

USCIS may, as a matter of discretion, grant your request for a National Interest Waiver where the below requirements are met:

• Your proposed endeavor has both substantial merit and national importance.
• You are well-positioned to advance the proposed endeavor.
• On balance, it would benefit the United States to waive the requirements of a job offer and, thus, the labor certification.

The USCIS Policy Manual includes detailed guidance on evaluating eligibility for national interest waivers based on the above requirements. It also discusses specific evidentiary considerations for entrepreneurs. For example, there may be unique aspects of evidence submitted by an entrepreneurial petitioner undertaking a proposed endeavor, including through an entity based in the United States in which the petitioner typically possesses (or will possess) an ownership interest and in which the petitioner maintains (or will maintain) an active and central role such that the petitioner’s knowledge, skills, or experience would significantly advance the proposed endeavor.

USCIS considers that entrepreneurs do not follow traditional career paths and that start-ups vary in structure. In addition to the general guidance, the USCIS Policy Manual clarifies that as an entrepreneur petitioner, you may submit other types of evidence to establish that your endeavor has substantial merit and national importance, that you are well positioned to advance the endeavor, and that, on balance, it would be beneficial to waive the job offer and thus labor certification requirements.

EB-5 – Immigrant Investor Program

Congress created the EB-5 program to stimulate the U.S. economy through job creation and capital investment by foreign investors. This section will focus on entrepreneurs investing in their businesses. For information on investors pooling their investments through the Regional Center Program, see About the EB-5 Visa Classification. 

What investment is required?

You must invest in a new commercial enterprise established after Nov. 29, 1990. You must invest $1.05 million unless the enterprise is doing business in a targeted employment area with a high unemployment rate or a rural area. In that case, the minimum investment is $800,000. You must establish the lawful source of your invested capital.

What job creation is required?

You must establish that the new commercial enterprise will create full-time positions for at least ten qualifying employees.

Are there any requirements after I become a permanent resident?

Immigrant investors are admitted as lawful permanent residents on a conditional basis. Within ninety days before the two-year anniversary of obtaining conditional lawful permanent resident status, you must apply to remove the conditions on your status. For more information on removing conditions, see EB-5 Immigrant Investor Process.