Using the EB1 and EB2 Preference Categories as an Investor or Entrepreneur

 

Introduction to using the EB1 and EB2 Categories for Investors and Entrepreneurs

investors and entrepreneursCertain investors and entrepreneurs may be eligible to use the first preference (EB1) or second preference (EB2) employment immigration categories to meet their immigration goals. For those businesspeople who meet the eligibility requirements, the EB1 and EB2 categories are very attractive due to the EB1 category not requiring labor certification and the EB2 category having a «national interest waiver» from the labor certification requirement. This article will explain the special considerations for such businesspeople who are considering applying under the EB1 or EB2 categories.

This article will include links to our full articles on each employment immigration preference category that we discuss here. Please use those links to learn more about the individual requirements for each category.

EB1A Category — Aliens of Extraordinary Ability

The EB1A category is for aliens of extraordinary ability in the sciences, arts, education, business, or athletics. To learn more about the specific eligibility requirements for the EB1A category, please read our article on the subject.

The EB1A category is appealing for qualified investors and entrepreneurs because the regulations do not require that the applicant have an offer of employment.1 In allowing self-petitioning, the EB1A category shares similarities with nonimmigrant (E1 and E2) and immigrant (EB5) categories that are specifically for investors. Furthermore, an approved petition that was filed by an employer will remain valid so long as the applicant intends to work in his or her area of expertise.2

However, the regulations require that «the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise.»3 Because being an entrepreneur or small business owner often entails many responsibilities, especially for new companies, an applicant under the EB1A category will often have trouble demonstrating that he or she will be working strictly in his or her area of expertise.

The only evidentiary option mentioned in the regulations that is applicable to a self-petitioner in the EB1A category is «a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States.»4 An investor, entrepreneur, or small business owner will be required to submit ample evidence that he or she will be working in his or her area of expertise rather than focusing on tasks involved in running a business that are not directly related to the area of expertise.

EB1B Category — Outstanding Professors and Researches

The EB1B category is for outstanding professors and researchers. To learn more about the specific eligibility requirements for the EB1B category, please read our article on the subject.

The EB1B category provides an avenue for investors who are researchers to seek status in the United States. However, unlike the EB1A category, the EB1B category requires that a researcher have an offer of employment from «a department, division, or institute of a private employer offering a permanent research position in the alien's academic field» (provided that the entity employs at least 3 persons full-time in research positions and that it has achieved documented accomplishments in the academic field).5 Furthermore, the employer for a research position must be a private entity.6

The requirement that the applicant have an employer limits this category's utility for investors and entrepreneurs. However, decisions such as Matter of M—, 8 I&N Dec. 24 (BIA 1958; AG 1958) [PDF version], provide precedent that an organization may petition successfully for one of its owners under an employment-based preference category.7 The applicant will need to show both that the offer is for permanent employment and that the employer will have the ability to pay the applicant the offered wage.8 Similar to the situation we discussed in the EB1B category, the applicant will be required to demonstrate that he or she is seeking a work visa in order to continue to engage in the research for which he or she has demonstrated outstanding achievements and recognition. A final issue that may prove to be a complication for investors, entrepreneurs, and small business owners considering the EB1B category is that the Administrative Appeals Office (AAO) has found that the applicant may not be seeking a visa to work in the fields of engineering and product design.9

EB1C Category — Multinational Managers and Executives

The EB1C category is for multinational managers and executives. To learn more about the specific eligibility requirements for the EB1C category, please read our article on the subject.

The EB1C category is an option for managers and executives who have worked in a similar capacity abroad to work at an organization with a qualifying relationship to the foreign organization in the United States. As with the EB1B category, the EB1C category requires that the petitioner also be the prospective employer.10 The petitioner must also demonstrate the ability to pay the beneficiary.11

In addition to the employment requirements, one restriction that limits this category's utility for investors, entrepreneurs, and small business owners is that the U.S. based petitioner must have been doing business in the United States for at least 1 year.12 This means that, unlike the similar L1A nonimmigrant visa category, the EB1C category does not allow for petitions by «new offices.» A person who is seeking an EB1C visa to work for a petitioner that meets the 1-year requirement, but that is still a young and/or small office, will have to take care to demonstrate that he or she will be working strictly in a managerial or executive capacity and that the petitioner has the capacity to support a managerial or executive employee. It is important to note that a front-line supervisor is only considered to be serving in a managerial capacity solely on account of being a supervisor if he or she is supervising professional employees.13

Investors and other persons with an ownership stake in the petitioning organization will need to carefully compile compelling evidence in order to satisfy the EB1C requirements. However, as we discussed in the EB1B section, there is precedent for organizations being able to petition for employment-based immigrant visas for their part-owners.

EB2 Category — Members of Professions Holding Advanced Degrees of Exceptional Ability

The EB2 category is for those who hold advanced degrees and have «exceptional ability» in the sciences, arts, or business. To learn more about the specific eligibility requirements for the EB2 category, please read our article on the subject.

The EB2 category is similar in purpose to the EB1A category. However, the regulatory requirements for demonstrating «exceptional ability,» while stringent, are easier to meet than demonstrating «extraordinary ability» in the EB1A and EB1B categories. On the other hand, there exists an advanced degree requirement for the EB2 category that does not exist for the EB1A and EB1B categories.14

For investors and entrepreneurs considering the EB2 category, its major disadvantage relative to the EB1A and EB1B categories is that it entails a labor certification requirement. Accordingly, a petition must be filed by a U.S. employer, there must be evidence of the job offer, and the U.S. employer must have the ability to pay the beneficiary.15

While the labor certification requirement may make the main EB2 category unusable for investors and entrepreneurs, there are two situations in which such an applicant can bypass the labor certification procedures: schedule A classification and the national interest waiver .

Schedule A

Certain jobs in the sciences or arts may be eligible for schedule A classification, which allows certain petitions to be exempt from the labor certification application.16 The applicant must explicitly apply for schedule A classification. However, while schedule A exempts the applicant from the labor certification requirement, the requirement that there be a U.S. petitioner, job offer, and that the petitioner demonstrate the ability to pay are still applicable.

National Interest Waiver

If the applicant obtains a national interest waiver, he or she will not only be exempt from the labor certification requirement but also from the requirement that he or she needs a job offer from a U.S. employer. To learn about meeting the requirements for a national interest waiver, please follow this link to read our article on the subject.

The national interest waiver permits self-petitioning similar to the EB1A category. In order to qualify for a national interest waiver, the applicant must meet all of the basic EB2 requirements and must also demonstrate that his or her U.S. employment would be in «the national interest.»17 While the term is not explicitly defined by statutes or regulations, the Administrative Appeals Office (AAO) has found that the employment must be an area of «substantial intrinsic merit.»18 Similarly to the EB1A category, an investor or entrepreneur who can demonstrate that he or she should receive a national interest waiver will still be required to demonstrate that his or her work will be concentrated on the activity that the applicant has exceptional ability in and obtained the waiver for.

Investors and entrepreneurs who qualify for either schedule A filing or a national interest waiver may consider the EB2 preference category. Otherwise, the labor certification requirement likely renders the EB2 category not conducive to the immigration goals of an investor or entrepreneur.

Conclusion: EB1 and EB2 for Investors and Entrepreneurs

An investor or entrepreneur seeking an immigration solution to do business in the United States should always consult with an experienced immigration attorney. An experienced immigration attorney will be able to assess his or her client's credentials and goals and use that information to determine which immigration solution is most appropriate. The requirements for a successful EB1 or EB2 petition are extensive under normal circumstances and, as we have discussed, will often be more arduous for an investor or entrepreneur (especially where an employer is required to petition for EB1B, EB1C, or EB2 schedule A). Please make sure to follow the links to our articles on each category to learn about the basic eligibility requirements for each. If an investor or entrepreneur and his or her attorney ultimately decides to use the EB1 or EB2 categories, an experienced immigration attorney will be able to help the investor or entrepreneur submit evidence to meet the EB1 or EB2 requirements and submit evidence to alleviate whatever concerns adjudicators may have given the specific nature of the applicant's proposed employment as an investor or entrepreneur.

_________________________

  1. INA § 204(a)(1)(E); 8 C.F.R. § 204.5(h)(5)
  2. 8 C.F.R. § 204.5(h)(5); Letter, Skerrett, Chief Immigrant Branch, Adjudications (Jan. 23, 1993), published on AILA InfoNet at Doc. No. 93031040
  3. 8 C.F.R. § 204.5(h)(5)
  4. Id.
  5. 8 C.F.R. 204.5(i)(3)(iii)
  6. AFM 22.2(i)(2)(B)
  7. See also Matter of Aphrodite Investments Ltd., 17 I&N Dec. 530 (Comm.r 1980) [following the precedent from Matter of M—]
  8. 8 C.F.R §§ 204.5(g)(2), (i)(2)
  9. Matter of __, WAC 99-016-52605 (AAO Feb. 6, 2001)
  10. INA § 203(b)(1)(C); 8 C.F.R. § 204.5(j)(1)
  11. 8 C.F.R. § 204.2(g)(2)
  12. 8 C.F.R. § 204.5(j)(2)
  13. 8 C.F.R. § 204.5(j)(4)(i)
  14. 8 C.F.R. 204.5(k)(1)
  15. INA § 203(b)(2); 8 C.F.R. § 204.5(k)(4); C.F.R. 204.5(g)
  16. 8 C.F.R. § 204.5(k)(4)
  17. INA § 203(b)(2)(B)
  18. Matter of New York State Dep't of Transportation (NYSDOT), 22 I&N Dec. 215 (Acting AC 1998) [finding that working on highway bridges had substantial intrinsic merit]

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1185-97, Print. Treatises & Primers.

Plicher, Susan. «Permanent Residence Without Labor Certification — Using the EB-1 and EB-2 Classifications for Small Businesses and Entrepreneurs.» Immigration Options for Investors and Entrepreneurs. 2nd ed. Washington, D.C.: AILA, 2010. 31-43. Print. AILA's Occupational Guidebooks.