3 Green Card Alternatives to the EB-5 Program for Immigrant Entrepreneurs
Like the proverbial Yellow Brick Road, the U.S. immigration system is filled with many complexities, uncertainties and unknowns. Sometimes the most well-known path to permanent residence (green card status) for entrepreneurs is not always the quickest or easiest. Here, we pull back the curtain to discuss some often-overlooked strategies for obtaining a green card.
For entrepreneurs, the most frequented road to permanent residence is the EB-5 Immigrant Investor Program. However, the EB-5 program presents some vexing issues that could delay an entrepreneur's ultimate goal of permanent residence. After committing to a large investment (currently $500,000 to $1,000,000 but soon to go up), some applicants may have to wait several years before they are eligible to apply for permanent residence. This delay, caused by the immigrant visa quota backlog, is due to the high demand that outpaces the limited availability of green cards in this category. There are simply more people from some countries in the queue than there are visas available. Additionally, all EB-5 investors must take extra steps within two years of obtaining their conditional permanent residence to remove these "conditions." Here, the U.S. government essentially wants to confirm that the investment was successful. Finally, the investment options are potentially risky. In short, although the EB-5 program may be the most frequented road, it is not the most direct road for all entrepreneurs.
Fortunately, there are alternatives available. Many entrepreneurs may be eligible to obtain permanent residence through the underutilized EB-1A Extraordinary Ability, EB-1C Multinational Manager/Executive or EB-2 National Interest Waiver categories. Because these visa categories are underutilized, the delays caused by quota backlogs for those born in certain countries can be avoided.
These paths to permanent residence offer entrepreneurs alternatives that relieve them of some of the burdens involved with the EB-5 program. These green card strategies do not require an investment and they offer immediate paths to permanent residence (no need to remove conditions), all while allowing applicants to work for themselves. Neither the EB-1A Extraordinary Ability nor the EB-2 National Interest Waiver petition requires an offer of employment or employer sponsorship, meaning individual entrepreneurs can self-sponsor and continue to work for themselves upon their admission to the United States. Although the EB-1C Multinational Manager/Executive petition does require an offer of employment, it can be from a business owned by the entrepreneur.
The recommended alternative path depends on the entrepreneur's country of birth and business plan:
EB-1A Extraordinary Ability
The EB-1A Extraordinarily Ability petition is a great alternative for China- and India- born entrepreneurs who are looking for relief from the quota backlogs that plague most other green card categories. Many permanent residence paths have significant backlogs for these applicants. The EB-1A Extraordinary Ability category typically has no backlog. Not only is there not a backlog, but the EB-1A petition is eligible for premium processing service, meaning that the United States Citizenship and Immigration Services (USCIS) will issue a decision within 15 days from filing, allowing entrepreneurs to quickly know the results of their petition. Once a petition has been approved, the individual and dependent family members typically can immediately apply for permanent residence.
The classification of "extraordinary" is determined by USCIS in one of two ways: 1. demonstrating that the applicant has received a major, internationally recognized award; or 2. demonstrating that the applicant meets three of the 10 criteria identified by the USCIS. Most applicants demonstrate their eligibility using the latter method. At first glance, the criteria may not seem to directly apply to an entrepreneur; however, through zealous advocacy, one can often show how a successful entrepreneur, at a minimum, has made original business-related contributions of major significance to the field, has played a leading or critical role with a distinguished organization, and has commanded or will command a high salary or other significantly high remuneration.
EB-2 National Interest Waiver
The EB-2 National Interest Waiver (NIW) is a recommended alternative for entrepreneurs looking to take on an endeavor that would have a significant economic impact. For entrepreneurs born in countries other than India or China, there typically is no backlog in the EB-2 category and permanent residence would be immediately available.
The EB-2 NIW category is available to individuals who are able to demonstrate: 1. that they are coming to the U.S. for a proposed endeavor with both substantial merit and national importance; 2. that they are well positioned to advance the proposed endeavor; and 3. that it would be beneficial to the U.S. to waive the requirement of a job offer and labor market test. The endeavor that an NIW applicant may seek to undertake includes business and entrepreneurship. In fact, the law recently changed so that it is easier to evaluate self-employed individuals, such as entrepreneurs, for eligibility. Evidence that the endeavor has the potential to create a significant economic impact, such as job creation, is favorably evaluated in these petitions when considering both the first and third criteria. Similar to demonstrating someone's extraordinary ability, showing that the applicant is well- positioned to advance the proposed endeavor, as required by the second criterion, is easily done when highlighting a successful entrepreneur's achievements.
The NIW category is ideal for entrepreneurs born outside India or China with a business plan that has the potential for job creation and macroeconomic value.
EB-1C Multinational Manager/Executive
Like the EB-1A Extraordinary Ability category, the EB-1C Multinational Manager/Executive category is a great alternative for foreign national entrepreneurs, including those from China and India who are looking for permanent immigration options that typically do not have green card backlogs. Moreover, it offers options for entrepreneurs who may be newer to their field or looking to enter the field for the first time. The EB-1C Multinational Manager/Executive category naturally lends itself to entrepreneurs who are looking to expand an existing foreign business or purchase an existing business in the U.S.
The EB-1C Multinational Manager/Executive category is available to individuals who have been employed outside the U.S. for at least one year in a managerial or executive capacity, and who are coming to the U.S. to fill a managerial or executive role for the same employer, an affiliate or a subsidiary of that employer. An entrepreneur can first come to the U.S. on an L-1A intracompany transferee work visa to open a new office and shortly thereafter (at least one year) start the permanent residence process. Alternatively, a foreign business-owning foreign national can acquire a viable, ongoing U.S. company that has been in business at least one full year, with sufficient infrastructure such that it can accommodate an executive or manager, and apply for an EB-1C based green card right away.
Entrepreneurs at different stages in their careers can benefit from this alternative path to permanent residence. A successful EB-1C Multinational Manager/Executive petition can be filed for an entrepreneur with years of business experience and achievements, but can also be filed for someone who is looking to expand into a new field or type of business in the U.S.
Green card quota backlogs and risky investments don't have to be a part of every entrepreneur's road to permanent residence. The EB-1A Extraordinary Ability, EB-1C Multinational Manager/Executive and EB-2 National Interest Waiver categories provide alternative paths that resolve many of the issues surrounding the more traditional EB-5 investor immigration program. Immigration through these alternative paths does not always require a large up-front investment, resolves the issue of backlogs and eliminates the burden of having to remove "conditions" on permanent residence years after the conditional green card is obtained. Consulting a knowledgeable immigration attorney can help entrepreneurs identify the best green card strategy.