On Apr 10 2018 by Feige M. Grundman
EB-1 for Entrepreneurs, Financiers, and Executives: A Wealth of Options
By Feige M. Grundman and Alexander Magalli
Over the past few weeks, the Klasko EB-1 team has shared insights on how individuals in clinical and creative professions can position themselves for EB-1 Extraordinary Ability classification—the so-called “Einstein Visa.” By approaching EB-1 petitioning as a series of achievements that are already wedded to ongoing success in your field, rather than defining it as a singular spectacular triumph, strategies for success can be crafted even in the absence of major awards or global stardom. And though the regulatory language requiring ‘national or international acclaim’ can make EB-1 classification seem intimidating to professionals in less glamourous sectors, understanding that this qualifier can be defined as ‘sustained recognition in your field’ makes it clear that paths to EB-1 classification exist for talented and accomplished individuals in fields not typically associated with celebrity.
In that vein, our team has employed a merits-based approach to prepare successful petitions on behalf of entrepreneurs, investors, and executives who may not—at first glance—seem to be obvious candidates for this level of immigrant visa. There are, in fact, several straightforward routes under both the EB-1 and EB-2 programs that can serve the immigration interests of accomplished professionals in the business sector.
Although the plain language of the EB-1 criteria may not seem tailored to business and its related fields, there are numerous ways to satisfy the minimum three required for classification. Particularly:
- Original business contributions of significance. If you can demonstrate and provide evidence that you have made a recognized advancement in business, finance, or economic practices, that accomplishment can form the cornerstone of an EB-1 petition. Such achievements might include implementing new business models that have been recognized or proven effective, pioneering new enterprises that are acclaimed as significant professional endeavors, or making scholarly contributions to the research literature in your field. If you can show that your peers have emulated and integrated your ideas into their own business practices, you’ve taken a big step toward demonstrating extraordinary ability.
- Published material about you in the press. This not only includes the popular media, but also discussion of you or your business in trade or scholarly periodicals. If your work has been the subject of case studies or academic review, that can satisfy this criterion as well.
- Service in leading or critical roles for distinguished organizations. Time spent on the board of directors or in a leading financial or operational role for a distinguished organization or business may satisfy this requirement. It’s sensible to conclude that expert guidance is critical to the success of any organization, so service as a strategic decision-maker for a notable business or institution is strong evidence that you are recognized as extraordinary.
- Authorship of scholarly articles and participation as a judge of the work of others are two unexpectedly relevant criteria. While ‘scholarly’ would seem to restrict applicants to authorship of papers in academic journals, the EB-1 comparable evidence clause leaves room for pieces published in trade journals as well. Evaluation of the work of others—be it as an outside consultant or internal supervisor—is another seemingly common activity that can support the claim that you are recognized as an expert in your field.
- Commanding a high salary in relation to others in your field or receipt of national or international prizes are concrete, objective criteria that confirm both your recognized ability and standing as an expert in your field.
If your endeavors in business can be shown to satisfy any three of the above criteria and you can demonstrate through objective documentation a degree of national recognition—for example, by having been invited to speak at business schools or industry conferences—you may be qualified for EB-1 classification based on your accomplishments in business.
But with such a high bar for entry, the Extraordinary Ability classification might not be the most realistic—or necessary—route to permanent residency for every executive or entrepreneur. For individuals whose immigration situations don’t require aiming quite so high, the EB-2 National Interest Waiver (NIW) presents attractive opportunities for immigration based on endeavors in business or finance. Indeed, a late 2016 precedent decision in this area called Matter of Dhanasar created an opening for entrepreneurs and finance professionals to pursue permanent residency based on their work. For a detailed analysis of how this decision has expanded opportunities for NIW classification, see this January 2017 post from Klasko Associate Lisa Felix.
Waiver of the labor certification requirement (and for sponsorship by one’s employer) based on national interest is specifically intended for individuals who are well-positioned to advance endeavors that have substantial merit and national importance. Although ‘merit’ and ‘national importance’ are not formally defined, the critical role that the economy and job creation play in determining national welfare creates an intuitive path for asserting that endeavors in business and finance satisfy these conditions. The following are just a few ways to show that your prior and ongoing endeavors qualify you for NIW classification:
- Your work creates jobs. It’s no secret that employment rates and job opportunity are major areas of public policy interest in the United States. If it can be shown that your endeavors will create job opportunities for Americans, you’ve got a solid argument for both merit and national importance. For entrepreneurs especially, this presents an excellent opportunity to show that your endeavors will prospectively benefit the nation regardless of the product or service you provide.
- Your endeavors have a positive impact on the economy. If it can be shown that your endeavors substantially contribute to the economy as a whole, this can serve to demonstrate the importance of your work to the national interest. Beneficial contributions to the U.S. economy can include, among other things, the development of previously nonexistent markets or a having a history of successful investment management on a large scale. If your endeavors can be shown to spur economic activity in one way or another, the overall value of your work to the national interest can be argued easily.
- Your work provides essential service to organizations with meritorious aims. If your endeavors in finance or business are essential to organizations that benefit the national interest, then it can be shown that your own endeavors are similarly essential and beneficial. For example, if you provide financial services or investment guidance to schools, hospitals, or non-profit organizations, you can show that institutions of national importance have specifically relied on your expertise and ability.
- Your work furthers knowledge or instructs others in the field. Furtherance of knowledge in the applicant’s field has been recognized as imparting national benefit. Therefore, advancements you make to the scholarship associated with your field can be used to back up claims of national importance. This can include both traditional academic endeavors like the authorship or research papers or more applied educational activities, such as giving guest lectures at a university or speaking at another company’s.
- Your work increases access to staple or quality-of-life-enhancing goods and services. In the age off apps, many entrepreneurs are seeking to bring vital services and products to consumers through more efficient and innovative access and delivery models. If you’re working on a startup or established business venture with such aims, then you’re in a good position to argue the merit and importance of your work.
Once the national importance and substantial merit of your work have been established, you must show that you are well-positioned to continue advancing said endeavor, bringing us back to the Extraordinary Ability requirements detailed above. Arguing the standing of an individual using criteria elsewhere accepted by the USCIS as a measure of accomplishment is a logical and effective approach. Dependent on one’s specific immigration needs, the EB-2 NIW provides a viable alternative when on-paper achievements in business fall just a bit short of the Extraordinary Ability mark.
Click here for a case study summary of a successful business-based NIW petition prepared by our team.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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