Employment-Based Second Preference Immigrant Visa Category </br>Frequently Asked Questions Regarding Entrepreneurs and the Employment-Based Second Preference Immigrant Visa Category
Questions and Answers
Q1. Where can I find the laws governing the Employment Based Second Preference (EB-2) Immigrant Visa Category?
Q2. What is the EB-2 Immigrant Visa Category?
Q3. Does anyone with an advanced degree qualify for an EB-2 Immigrant Visa?
Q4. Can an entrepreneur qualify as a member of a profession holding an advanced degree?
Q5. Can an entrepreneur qualify as an individual of exceptional ability in the sciences, arts, or business?
Q6. Why is a labor certification required to qualify for an EB-2 Immigrant Visa Category?
Q7. How is exceptional ability defined?
Q8. How can an entrepreneur establish that he or she has exceptional ability in the sciences, arts, or business?
(A) An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
It should be noted that, as set forth in subparagraph (A) above, the regulation requires that the alien (in this case, the entrepreneur) have a degree “relating to” the area of exceptional ability. This means that the entrepreneur’s degree need not be in the same field of claimed exceptional ability, but only that it be related to that field. For example, an entrepreneur seeking to start an internet-related business and who claims exceptional ability in that field might qualify with a degree in computer science, network technology, or certain areas of business.
Second, the entrepreneur must demonstrate that he or she has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Q9. If an entrepreneur is unable to provide documentary evidence that he or she meets at least three of the six regulatory criteria for exceptional ability, can he or she submit other evidence to demonstrate exceptional ability in the sciences, arts or business?
If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.
Comparable evidence is to be accorded the same weight as evidence submitted in support of the criteria listed above. Irrespective of the type of evidence presented, the entrepreneur has the burden of proving, by a preponderance of the evidence (i.e. more likely than not), his or her eligibility for the EB-2 visa classification. USCIS will take into account the totality of the circumstances when reviewing the evidence provided.
When comparable evidence is presented, the entrepreneur must explain how and why the regulatory criterion for which comparable evidence is being submitted does not readily apply to his or her occupation.
There is no limitation on the type of comparable evidence the entrepreneur may present; instead, the focus is on the quality of the evidence presented and how it compares to the regulatory criterion for which it is being substituted. For example, the entrepreneur might demonstrate such past achievements as his or her successful history in obtaining venture capital funding from reputable sources, or his or her past participation in incubators (entities that provide resources, support, and assistance to entrepreneurs to foster the development and growth of an idea or enterprise) that have high evaluative standards for participation.
Q10. How does an entrepreneur show that he or she will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States?
NATIONAL INTEREST WAIVER
Q11. Is there a “national interest waiver” (NIW)? And if so, what is it? Can an entrepreneur qualify for a NIW?
Q12. If an entrepreneur wants to file for a NIW, does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability?
Q13. If an entrepreneur wants to file for a NIW must he or she have an actual employer in the United States?
Q14. Is there a definition of “national interest”?
While NYSDOT does not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the NIW under limited circumstances. Footnote 5 in the decision states:
The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…[T]he petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field.
NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement.
Stated another way, the petitioner, whether the U.S. employer or the NIW applicant, must establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
Q16. How does the first prong of NYSDOT relate to entrepreneurs?
Q17. How does the second prong of NYSDOT relate to entrepreneurs?
Q18. How does the third prong of NYSDOT relate to entrepreneurs?
The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.
Last Reviewed/Updated: 08/02/2011