Strategies for Entrepreneur Green Cards Webinar

We recently live-streamed a webinar discussing some effective strategies for entrepreneurs to obtain green cards. Our legal team dove deep into some real-world scenarios in which startup founders, entrepreneurs and other business people (those self-petitioning or self-petitioning through an entity that they control) can use to maximize their chances of approval! Below is a recap of some of the main immigration paths they discussed. For a more comprehensive outline of entrepreneur options, check out this complete entrepreneur green card guide.

As always, it is highly recommended to schedule a consultation with one of our attorneys to determine what the best course of action is for your particular case.

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Entrepreneur Green Cards: Nonimmigrant Visas vs Bridge Strategies

There are several ways foreign nationals can enter the U.S., including the E-1 and E-2 Treaty Visas. These are known as “temporary worker” visas and are made for citizens of specific treaty countries. These are countries that have an established agreement of commerce and trade with the United States.

To qualify for an E-1 classification, a treaty trader must:

• Be a national of a treaty country with which the United States maintains a current agreement of commerce and navigation
• Carry on substantial trade internationally between the treaty country and the United States
• Carry on principal trade between the United States and the treaty country which qualified the treaty trader for an E-1 classification

What is considered trade?

Trade can include things such as goods, services, international banking, insurance, transportation, tourism, technology and its transfer, specific news-gathering activities, etc. The requirements for the E-2 visa are similar to the E-1 with the difference being that it is for investors from treaty countries as opposed to traders. There is a greater emphasis on the amount of capital investment in the U.S. business for an E-2 visa. You must:

• Be a national of a country with which the United States maintains a treaty of commerce and navigation
• Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States
• Interested in entering the United States solely to develop and direct the investment enterprise. 50% ownership of the enterprise can establish this. Having operational control through a managerial position or other corporate device can also establish it.

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H-1B and Employer-Employee Relationship

The H-1B visa is designed for highly-skilled professionals with at minimum a bachelor’s degree to work in the U.S. Unlike other types of visas, the H-1B works as an annual lottery allotting 65,000 for the regular cap and 20,000 for the H-1B master’s cap. This past lottery season, the filing window was from March 1, 2023 to March 17, 2023. How it works is that employers preregister their foreign workers into the database, then USCIS randomly selects enough registrations to meet the quotes and within 90 days of being selected, registrants file their full petitions along with supporting documents and the filing fees. USCIS reviews the information submitted and if the petition is approved, the visa will be issued and the beneficiary’s start date is set to October 1, 2023.

L-1A Intracompany Transferee Executive or Manager

The L-1A is for intracompany transferees who have a managerial or executive position in the company (including those who oversee the management of the organization). As our team pointed out in the webinar, the intent is to use it as a bridge toward a green card strategy. To qualify for an L-1A visa, the employee must have worked for the foreign company for a least one continuous year out of the last three before the application was filed (in a managerial, executive or other high-level capacity). The qualifications for an L-1B are similar to the L-1A, in that the employee must have worked for the foreign company for a least one continuous year out of the last three before the application was filed.

O-1 Extraordinary Ability

The O-1 falls in the nonimmigrant visa category. The O-1A and the O-1B Visas are specifically designed for foreign nationals with extraordinary abilities in the fields of science, business, art, athletics, motion pictures, education, or television who wish to work for a company within the United States. These are not eligible for self-petitioning meaning that your employer or an agent must submit the application on your behalf.

Entrepreneur Parole

A final type of what we consider a bridge status is entrepreneur parole. This requires substantial capital investments from qualified U.S. investors and grants the ability to work and get travel authorization in the U.S. if your entity has substantial capital. Unlike the E1 or E2 which is more of an out-of-pocket effort, the entrepreneurial parole requires that the capital investment be from a third party, usually venture capital funders or the government. The capital requirement is $250k for private investors and $100k if they are federal/state-related.

EB-1A Extraordinary Ability

As Shilpa Malik said in the webinar this is the “king of all green cards” because it’s one of the highest green cards accorded by the U.S. government to individuals. The U.S. government loves to bring in people who add value to the economy, have achieved a high level of distinction in their field – being in the top five percent of your field!

Requirements for EB-1A:

• Distinction in the Field
• Demonstrated record of outstanding accomplishments
• Recognition and prominence in the field of expertise
• National/International Recognition
• Proof of acknowledgment at the national or international level
• Sustained Achievement
• Consistent contributions leading to sustained recognition
• Contributions of Major Significance
• Work that surpasses routine or expected activities

EB-1C Multinational Executive or Manager

One of the major benefits of opting for the EB-1C status is that a PERM Labor Certification is not required to petition. To qualify, there are requirements for both the candidate and the employer. As the candidate, you must have been employed for one year within the past three years preceding the petition by the parent company, overseas affiliate, branch, or subsidiary of hte U.S. employer. You must also be seeking to work in the U.S. in a managerial or executive capacity with the same employer, an affiliate or a subsidiary of the employer. As the employer you must conduct business in the U.S., have been in existence in the U.S. for at least one year.

EB-2 National Interest Waiver

The national interest waiver bears some similarities with the EB1A yet it typically is easier to get an approval for an NIW for those who meet the criteria.
There are two elements to a national interest waiver—one of them being that you could be an individual with extraordinary ability in your field which you know. To qualify for an EB-2 NIW the foreign national’s proposed endeavor must have both substantial merit and national importance. Learn more about qualifying for an EB-2 NIW.

EB-5 Immigrant Investor Program

The minimum required investment amount $1.05 million in a new commercial enterprise or $800,000 if the investment is made in a targeted employment area (TEA). Some of the benefits of obtaining an EB-5 versus other green card options is that you are not required to submit a PERM labor certification, you are not required to have a permanent job offer in the U.S., not required to maintain an existing home-country business or demonstrate extraordinary ability. You can learn more about the pros and cons of an EB-5 in this guide.