EB-1A and EB-2 NIW as Alternatives to EB-5

Many Entrepreneurs consider EB-5 immigrant category as their only path to their permanent residency in the United States. However, there are other options as well. For instance, besides costly EB-5 program, many entrepreneurs may qualify for the EB-1A Extraordinary Ability and/or EB-2 NIW Extraordinary Ability (EB-1A) category. To be eligible for Extraordinary Ability (EB-1A) category, an applicant must demonstrate that 1. he or she has received a major, internationally recognized award; or 2. that the applicant meets 3 of the 10 criteria identified by the USCIS. For example, to meet at least three of the ten criteria, the applicant may provide evidence demonstrating that the applicant is a member of a professional association in the field for which classification is sought which requires outstanding achievement of its members; published materials about the applicant in professional or major trade publications or other major media relating to the applicant’s work in the field for which classification is sought; evidence demonstrating that the applicant has participated in judging the work of others in his or her field or allied field for which classification is sought, either individually or on a panel; evidence of the applicant’s original business-related contributions of major significance to his or her field; evidence of the applicant’s authorship of scholarly articles in the field, published in professional or major trade publications or other major media; evidence of the applicant’s performance in a leading or critical role in organizations or establishments with distinguished reputations; evidence that the applicant received in the past or will receive in the future a high salary or other significantly high remuneration in relation to others in his field.

In addition, this category is a great option because it is eligible for Premium Processing meaning that if the applicant pays $1,410 in addition to the regular filing fee ($700), the USCIS will review the EB-1 petition within 15 days from the date of filing.

EB-2 National Interest Waiver (NIW) categoryThe EB-2 National Interest Waiver category maybe beneficial to those Entrepreneurs whose endeavor would have a significant economic impact in the United States. To be eligible for EB-2 NIW, an applicant must demonstrate the following:

1. his or her proposed endeavor has both substantial merit and national importance;

2. he or she is well positioned to advance the proposed endeavor; and

3. it would be beneficial to the U.S. to waive the requirement of a job offer and labor market test.

National Interest Waivers are usually granted to those who have exceptional ability in their fields of endeavor. To demonstrate exceptional ability, the applicant must meet at least three of the enumerated criteria. For example, the applicant may submit evidence demonstrating that the applicant possesses degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to his or her area of exceptional ability; letters documenting at least 10 years of full-time experience in his or her occupation; a license to practice his or her profession or certification for his or her profession or occupation; evidence that the applicant has commanded a salary or other remuneration for services that demonstrates his or her exceptional ability; membership in a professional association(s); recognition for the applicant’s achievements and significant contributions to his or her industry or field by his or her peers, government entities, professional or business organizations; as well as other comparable evidence.


O-1 Visa, Individuals With Extraordinary Ability Or Achievement

The O-1 visa is for the individual who has extraordinary ability in designated fields and has been recognized nationally or internationally for those achievements.

The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

The O nonimmigrant classification is commonly referred to as:

  • O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)

  • O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry

  • O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1

  • O-3: individuals who are the spouse or children of O-1’s and O-2’s (Those with an O-3 classification may not work in the United States, but they may engage in full- or part-time study under the O-3 visa.)

To qualify for an O-1A visa in the fields of the sciences, education, business, or athletics, the beneficiary must:

  • Demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.

Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.

To qualify for an O-1B visa in the arts or motion picture and television industry, the beneficiary must:

  • Demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.

Extraordinary ability in the field of arts and motion picture and television industry means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.


Obtaining Asylum Status in the United States

Asylum status is a form of protection available to those who are already in the United States or seeking admission at a port or entry.

Every year people come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to race, nationality, religion, membership in a particular social group, or political opinion.

Anyone seeking asylum in the United States may apply regardless of their country of origin or current immigration status. Applications must be filed within one year of arrival to the United States and can include spouse and children at any time until a final decision has been made.

To be considered for asylum within the United States, you must meet these generals requirements:

  • You are physically present in the United States, regardless of how you arrived,

  • You are in the United States less than one year from the date of your last arrival and

  • You can demonstrate that you were persecuted or that you fear persecution due to race, religion, nationality, political opinion or membership in a particular social group.

You may include your spouse and children on your application, if they are in the United States, and if the children are unmarried and under 21 years old. You can include them at the time of your filing or at any time until a final decision is made on your case.

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