United States The Promise Land for Startup Founders – Find the best option to conquer the green card – EB-1A or EB2 NIW (National Interest Waiver)

According to Forbes, more than half of American unicorn startups were founded by immigrants. The reasons why the U.S. is chosen are diverse, from access to venture capital money, angel investors, top-notch accelerator programs, and market size, just to name a few.

When it comes to deciding which immigration visa path to follow, many founders keep their strategic mind at their office, not thinking that this is a matter of strategy and that the immigration process should be strategically designed and executed.

The goal should take a closer look at immigration law and choose a path that will give the most freedom in the most time-efficient manner.

As a startup founder, the Green Card will provide you with the most flexibility, making it easy for entrepreneurs to immigrate to the U.S. to launch multiple ventures without having to apply for a single visa for each one of them or even switch employment if necessary. Acquiring a green card can also extend the benefit to direct-family members (spouse and minor child).

The most popular method of immigration for startup founders is getting a green card through EB-1A (Employment-Based Immigration 1st Preference) or EB-2 NIW (Employment-Based Immigration 2nd Preference – National Interest Waiver (NIV)).

Let’s dive deeper between their differences, advantages, disadvantages, and more.

About EB-1A employment-based visa

It is an employment-based immigrant visa issued by the USCIS for individuals with extraordinary abilities in the areas of science, business, education, arts, and athletics.

To be considered extraordinary, the applicant must be able to demonstrate “sustained national or international acclaim” and show achievements that will position them in the top 1% of their field.

Extraordinary ability can be proved by satisfying 3 out of the 10 criteria established by the USCIS:

• Evidence that the petitioner has received a national or international award or prize.
• Evidence of petitioner’s membership in a renowned association in their field of expertise.
• Evidence of publication of their work in a major publication or media outlet.
• Evidence of judging the work of others.
• Evidence of critical contribution to their field of endeavor.
• Evidence of scholarly authorship.
• Evidence of playing a leading role in a distinguished organization.
• Evidence that the petitioner has commanded a high remuneration.
• Evidence of commercial success.

Evidence that work has been displayed or showcased.

Pros of applying for a green card through EB-1A (Extraordinary Ability)

• Self-petition process. This means that this is a type of visa that does not require a U.S. employer to sponsor your green card application.
• No job offer in the United States is needed. Not having to go through the PERM labor certification process saves so much time and headache because not many employees are willing to petition on behalf of prospective employees. 

EB-1A is current most of the time – not always. Therefore, obtaining a green card without a sponsor is the fastest way. It is essential to check the USCIS Monthly Visa Bulletin.

Cons of applying for a green card through an EB-1A visa

EB-1A visa has a very high qualification standard, even higher than the requirements to qualify for an O-1 visa.

Adding that fact to the high discretionary power the USCIS officer has when evaluating and deciding the case. It makes it challenging to get qualified under the current law.

However, an experienced team that provides immigration services like ours can evaluate your case and help you achieve your immigration goals.

About EB-2 NIW (National Interest Waiver)

EB-2 NIW is also an employment-based visa but falls under the 2nd preference. It is granted to individuals who hold an advanced degree or have exceptional abilities and will also be able to deliver a project or endeavor that serves the national interests of the United States.

To qualify for EB-2 National Interest Waiver, applicants must fulfill specific requirements, including:

• Advanced Degree
• Prove advanced degree or foreign equivalent
• Meet any other labor certification requirements
  
• Exceptional Ability in science, business, or arts
• To prove exceptional ability in the science, you must meet at least 3 out of 7 criteria established by the USCIS:
• Official academic record (diploma, certificate, or similar)
• Professional license certification
• Evidence that the petitioner has commanded high-remuneration
• Proof of membership in a professional association of distinguished reputation
• Evidence of recognition of achievements and contributions to the field of endeavor
• Comparable evidence of eligibility.
  

Meet any other labor certification requirements.

The National Interest Waiver (NIW)

It is a method to be exempt from going through the labor certification process and job offer requirements for EB-1 and EB-2 NIW visa applications.

When the NIW petition is requested, it means that the person wants the labor certification to be waived and can prove their endeavor is in the national interest of the U.S.

The USCIS assumes 3 factors in order to consider National Interest Waiver:

• The proposed work has national importance or substantial merit.
• The petitioner is capable of performing the proposed endeavor.

It would benefit the country to waive the labor certification.

Pros of EB-2 NIW immigration process

• Lower standards, compared to EB-1A
• Self-petition process
• Allows petitioner to skip labor certification process, avoid potential green card backlogs ahead in the process.

Cons of EB-2 NIW visa

It is time-consuming since EB-2 NIW is classified as an employment-based immigrant visa of 2nd preference. The timing to file the petition depends on the priority dates (the date when your petition can be filed with USCIS).

The priority dates are established based on the demand for immigrant visas, the supply for a particular preference category, and the country of changeability. If the demand is more significant than the supply, the Department of State (DOS) imposes a cut-off date to ensure the allocation within the statutory limits.

The DOS issues a monthly Visa Bulletin to report visa availability.

Additionally, it is necessary to provide substantial evidence that the petitioner’s projects or endeavors have “substantial merit” or “national importance,” which means they can benefit the national economy and contribute to the advance of the profession, the science, or the technology world.

Understanding the differences and similarities between these two paths

Main Similarities

• Labor certification is not required
• Must prove extraordinary ability, and achievements
• Must submit supporting documents to demonstrate abilities and achievements
  

Main Difference

EB-1A requires a higher standard of abilities and achievements than EB-2 NIW

Conclusion

In 2022, the amount of employment-based visas issued was 52% higher than the average before the COVID-19 pandemic.

This means that regardless of the complexity of the employment-based green card process, with the proper guidance, it can be accomplished.

An important note to make is that the extraordinary criterion can be developed, and here at PassRight, we can assess your current profile to see if you qualify for an EB-1A or qualify for an EB-2 NIW and, based on that, design an immigration strategy that will be better for your situation. Contact us if you have any questions.