The USCIS recently modified its policies to allow immigrant entrepreneurs to obtain a green card faster under the employment-based second preference (EB-2) category. This is one of several measures taken by the USCIS intended to help ensure that the United States “out-innovate and out-compete” the world in today’s global economy.
The USCIS clarified that an entrepreneur may qualify under EB-2 if he/she fulfills existing requirements as an advanced degree professional or individual of exceptional ability, and meets the requirements which include a job offer and a labor certification from the Department of Labor.
An entrepreneur may qualify for EB-2 classification if he/she is a member of a profession holding an advanced degree or its foreign equivalent, and the underlying position requires, at a minimum, a member of a profession holding an advanced degree or its equivalent
Another way that an entrepreneur may qualify is if he/she is an individual of exceptional ability in the sciences, arts or business. It must be demonstrated that the entrepreneur will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. To establish exceptional ability, at least 3 of 6 criteria must be met, which include academic proof, employment letters showing at least 10 years of full-time experience in the occupation, a license or certification, and evidence of salary or remuneration that demonstrates exceptional ability.
In either case, there must be a U.S. employer filing the petition on the entrepreneur’s behalf and which has received a labor certification. The entrepreneur must also meet all the specific job requirements listed on the labor certification.
The job offer and labor certification requirements may be waived if it’s in the national interest to do so. Entrepreneurs may now obtain a National Interest Waiver (NIW) under EB-2 if they can demonstrate that their business endeavors will be in the interest of the United States. With a NIW, the entrepreneur may be able to file a petition for him/herself.
“National interest” for purposes of the waiver is not defined by statute or regulation. However, the threshold for eligibility for the waiver is determined by three criteria. First, the NIW applicant must seek employment in an area that has substantial intrinsic merit. The focus is on the area of activity and not the entrepreneur’s qualifications.
Second, the waiver applicant must demonstrate that the proposed benefit will be national in scope. For example, according to the USCIS, the entrepreneur can demonstrate that his/her enterprise will also create or spin off jobs in other parts of the country, or that the jobs created locally will have a positive national impact.
Third, the waiver applicant must demonstrate that the national interest would be adversely affected if the position sought by the applicant were made available to U.S. workers. In other words, the applicant must show a national benefit so great that it outweighs the national interest in protecting U.S. workers through the labor certification process. The entrepreneur may fulfill this by demonstrating that his/her business enterprise will create new jobs for U.S. workers.
Except for nationals of China and India, there is currently no visa backlog under the EB-2 preference category. With the substantial backlog in the EB-3 category, qualifying under the EB-2 category assures a considerably shorter waiting time for permanent resident status.