Several paths exist for entrepreneurs to obtain US permanent residency (a “green card”) by starting a business in the United States. It is important to first note that a green card typically takes months, if not years, to obtain, depending on the type of green card and the nationality of the applicant. This makes it important to consider temporary options to maintain legal status in the US while waiting for the green card, such as an E-2 treaty investor visa, L-1 intracompany transferee visa, or O-1 exceptional ability visa.
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EB-5 “Investor Visa”
An EB-5 green card may be obtained by starting a business, or by acquiring or investing in an existing business. Its biggest drawback is its cost; the EB-5 green card requires a minimum investment of $900,000 if the business is located in an economically depressed area, and $1.8 million if the business is located in a high-employment area. The qualifying investment may be made in the form of cash, tangible property, intangible property (such as patents), or a combination, but must be “at risk” in the business.
As of December 2020, there is a five-year waiting list for EB-5 visas for Chinese nationals, and a three-year waiting list for Vietnamese nationals, making other green card categories a more attractive option for individuals from these countries.
EB-1A “Extraordinary Ability Visa”
This category requires “sustained acclaim” as an individual with “extraordinary ability” in business; essentially, as a person who is at the top of their field. This field may be defined as a fairly specific area of technology, science, industry, or commerce. Evidence of such acclaim must usually include awards, publications about the individual, and/or memberships in associations that require outstanding achievement. USCIS looks for objective evidence of recent achievements in the field. A holder of an O-1 visa may be denied an EB-1A green card because their achievements, while recent enough to qualify for an O-1 when they applied, are no longer recent enough to qualify for an EB-1A green card.
EB-1A green cards do not require an employer to serve as the sponsor; the individual may self-sponsor. This is particularly helpful when the employer is a small or less-established business. If the individual self-sponsors, they will need to provide evidence (such as tax returns) of their self-sufficiency. It is also possible to change jobs while waiting for the process to be completed.
The criteria for an EB-1A green card are often very difficult for entrepreneurs to meet, especially if their achievements are focused on the business realm as opposed to science or technology.
As of December 2020, EB-1 visas are current for all nationalities except Chinese and Indians, who face an additional waiting period of around 18 months.
EB-1C “Manager/Executive Visa”
The EB-1C green card is available to managerial or executive employees who are being transferred from a foreign employer to a related US employer. It can be used for “owner-executives,” but in practice, it is more popular for executives in large companies and less popular among entrepreneurs.
The US company must have been doing business for at least 1 year, have a qualifying relationship to the individual’s previous employer outside the U.S., and intend to employ the individual in a managerial or executive capacity. The individual must have been employed outside the US for at least 1 year in the 3 years preceding the petition, or if they are already working for the US employer (such as on an E-2 or L-1A visa), their most recent lawful nonimmigrant admission.
As of December 2020, EB-1 visas are current for all nationalities except Chinese and Indians, who face an additional waiting period of around 18 months.
EB-2 “National Interest Waiver” (NIW)
The NIW category requires the entrepreneur’s proposed endeavor in the US to be of “national importance.” This generally makes it unsuitable for individuals running businesses that are local or regional in scope. One exception is where the business is located in an economically disadvantaged area and has an effect of stimulating the economy in that area, which USCIS views as being of sufficient “national importance.” The entrepreneur must also be “well positioned” to advance the endeavor. The entrepreneur’s past experience and accomplishments are generally key in demonstrating this to USCIS. The NIW category finally requires an advanced degree or a showing of exceptional ability in the field.
As of December 2020, EB-2 visas are current for all nationalities except Chinese and Indians. Chinese face an additional waiting period of four years, while Indians face an additional waiting period of eleven years. EB-1 visas are therefore generally a preferable option for entrepreneurs from these countries who meet the EB-1 criteria.