Is the Eb1a the best green card for entrepreneurs?
Oftentimes I talk to entrepreneurs about nonimmigrant US visa options which can include the E2 visa and occasionally the O1 or L1 visa.
But oftentimes, entrepreneurs do not want to deal with the uncertainty involved in maintaining a nonimmigrant visa. For people in this group, the green card options may include the investment based Eb5 green card or the Eb1c green card which is reserved for executives and managers of multinational companies.
There are a number of options to explore. However, during the course of my practice, the two options I discuss most frequently are the Eb1a green card and the National Interest Waiver green card both of which allow you to apply without a sponsor.
Are either of these options the best green card for entrepreneurs? Well, that depends on your circumstances. Generally you will pick the option that is attainable. And if there are a few different types of attainable green cards, you will pick the fastest option.
The Fastest Green Card for Entrepreneurs?
The Eb1a is the fastest green card for entrepreneurs due to the lack of a visa backlog and the availability of premium processing.
People from certain countries will have to wait months, years or even decades before they can finally obtain a green card after their initial I-140 petition is approved by USCIS.
This is due to the fact that for many green card categories a certain number of visas are allocated to each country on a yearly basis. If the demand for a particular category exceeds the supply, a backlog is created which oftentimes results in staggeringly long wait times.
A full explanation of the green card preference system is well beyond the scope of this post. However, for the purpose of our discussion, suffice it to say that historically, the lower the preference category, the longer the wait. And conversely the higher the preference category the shorter the wait. The “EB1” in the Eb1a means employment based first preference category. As the highest preference category, people in this group will generally not experience long wait times after their I-140 petition has been approved.
The second reason why the Eb1a is the fastest green card for entrepreneurs is due to the fact that premium processing is available. For any person who applies for an employment based green card, the first step is to file the form I-140. The standard processing time for these applications can be 12 months or longer depending on USCIS’s case load. Fortunately, for some preference categories, including the Eb1a, applicants can pay an additional processing fee to obtain a decision within 15 days.
NIW Green Card vs. Eb1a Green Card
Oftentimes, a client will be well positioned to qualify for the National Interest Green Card or the Eb1a Green Card.
The main advantage of the Eb1a green card is that it is faster to obtain. As we just discussed, premium processing is available for Eb1a green card applications. As if January 30, 2023, premium processing is also available for National Interest Waiver applications. However, the processing time is slightly slower(45 days).
The main advantage of the National Interest Waiver Green Card is that it is easier to obtain. Now, don’t get me wrong, the NIW is difficult to obtain. I certainly wouldn’t qualify for one. But it has a slightly lower bar than the Eb1a green card which requires you to demonstrate that you have risen to the top of your field.
The Eb1a Requirements
My bold take is that the Eb1a is the best green card option for entrepreneurs, mainly due to the speed in which it can be obtained. But there is a huge catch. This option is only great if you are confident that you can meet the difficult requirements.
Unless you have been awarded a major globally recognized award for excellence such as a pulitzer prize or an olympic gold medal, you will have to meet at least 3 of the following criteria…
- Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
- Evidence of your membership in associations in the field which demand outstanding achievement of their members
- Evidence of published material about you in professional or major trade publications or other major media
- Evidence that you have been asked to judge the work of others, either individually or on a panel
- Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
- Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
- Evidence that your work has been displayed at artistic exhibitions or showcases
- Evidence of your performance of a leading or critical role in distinguished organizations
- Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
- Evidence of your commercial successes in the performing arts
The most relevant categories or the “big three” for entrepreneurs include international/national awards, published material about you, membership in an organization that requires substantial achievement.
If you can meet the big three criteria, then you will be in good shape. If you can’t meet these criteria, then you may have trouble even if you meet a total of three of the criteria.
Common Eb1a Evidence
Let’s now go through the big three and talk about the type of evidence that can be presented by entrepreneurs.
Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
I am not aware of many nationally or internationally recognized awards for excellence in entrepreneurship. However, funding in certain circumstances can constitute an award.
For example, sometimes an accelerator program will provide funding. Maybe your startup was awarded a grant? Maybe you were able to raise venture capital? If you are able to show that the funding that you received is very difficult to obtain, then you could try to use the funding as an equivalent to a nationally or internationally recognized award for excellence.
Evidence of your membership in associations in the field which demand outstanding achievement of their members
There are a number of well known and lesser known accelerators that are extremely competitive. If you can demonstrate that acceptance into an accelerator program requires a high level of accomplishment, then you could be able to meet this criteria. For example, acceptance into Y-combinator—given its high level of prestige—is almost certain to qualify as a nationally or internationally recognized award that requires outstanding achievement.
Evidence of published material about you in professional or major trade publications or other major media
There are a number of types of media that you could try to use for this criteria from podcast interviews to more traditional forms of media like magazines and newspapers. But, regardless of the form, there are a few principles to keep in mind.
This probably seems obvious, but the larger the audience the better.
Also, it is better if the media or publication focuses on you as opposed to your company especially if you are one of many co-founders.
Meeting Three of the Criteria May Be Insufficient!
Ok, so let’s say that you are able to meet three of the criteria. You would think that your Eb1a would be guaranteed. Unfortunately, that is not the case. Even if you can prove by a preponderance of the evidence that you meet three of the ten criteria, the officer who evaluates your case will conduct a second step in their analysis.
The USCIS policy manual says…
“…the officer should evaluate the evidence together and consider the petition in its entirety to make a final merits determination of whether or not the petitioner has demonstrated that the person has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise, indicating that the person is one of that small percentage who has risen to the very top of the field of endeavor.”
The reason why the big three are considered the big three is that they have the most impact on the officer’s determination of whether or not you have risen to the top of your field.
So, to circle back to the original question…what is the green card for entrepreneurs?
Conclusion: Is the Eb1a the Best Green Card for Entrepreneurs?
In my opinion the Eb1a green card is clearly the best because you can self petition and it is fast. But, by its very nature it won’t be available to many people. The vast majority of us are simply unable to demonstrate that we are at the very top of our field.
So if you are an entrepreneur who can’t demonstrate that you are at the very top of your field, don’t sweat it. You can explore the national interest waiver green card which is not quite as difficult. Or you can explore nonimmigrant visas. My favorite visa, the E2 visa, enables many talented entrepreneurs to live in the US while they direct and develop a business in which they have made a substantial investment.
If you are an entrepreneur who is interested in coming to the US, there are a number of immigration options to explore. This is best accomplished by reaching out to one of the many talented immigration lawyers that you can find across the globe.
Thanks for your time!
Ben Frear, Esq.
Immigration Lawyer for Entrepreneurs