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THERE IS NO “START UP” IMMIGRANT VISA UNDER CURRENT LAWAlthough there are bills that have been introduced in Congress, no ...
 Some L1-Bs might qualify as an alien of exceptional ability (EB-2) with a     labor certification or NIW. [More on EB-2 ...
The National Interest Waiver (NIW) is an EXTRA Benefit for EB-2sThe requirements for the NIW are defined via AAO Precedent...
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Comments to cisomb on alternate entrepreneur paths 10 18-2011

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Comments to cisomb on alternate entrepreneur paths 10 18-2011

  1. 1. THERE IS NO “START UP” IMMIGRANT VISA UNDER CURRENT LAWAlthough there are bills that have been introduced in Congress, no such immigrantvisa option (path to a green-card) exists for an “investor” based solely on being aninvestor aside from the EB-5 Immigrant Investor Visa. EB-5 is a “thank you” fromthe U.S. for investing a minimum amount of money and creating or preserving aminimum number of jobs at least until conditions are lifted. Once conditions havebeen lifted, there is no further obligation to remain in business or employ anyoneever again. In addition, those jobs may be the most boring, unpleasant, thankless,mundane minimum wage jobs imaginable (which includes service workers’minimum , i.e. food server, which is even lower than the regular federal minimumwage because tips are expected).If one is creative, entrepreneurs might find a way to seek a green-card throughcertain other existing immigrant classifications.One might try a two-stage approach by first seeking a foothold as a non-immigrant.L non-immigrants may be principles, co-owners, stockholders in the petitioningbusiness and this allows them to be self-petitioners.  The more probable approach might be to expand an existing or start up foreign business by seeking an L non-immigrant visa to start a new office or transfer to and expand an existing U.S. branch, affiliate, or subsidiary of the foreign parent company.  Many L1-As who enter as an intra-company transferee in a managerial or executive capacity (which would be more well suited to an entrepreneur) might later qualify for an EB-1 (E1-1 or E1-C) immigrant visa as a Multinational Executive or Manager.  Fewer L1-Bs who enter as an intra-company transferee in a specialized knowledge position will make the grade as an EB-1C unless they get promoted or act as “working-manager”  Fewer “L’s” will qualify as an EB-1A alien of extraordinary ability.By Joseph P. Whalen (non-attorney) October 18, 2011 Page 1
  2. 2.  Some L1-Bs might qualify as an alien of exceptional ability (EB-2) with a labor certification or NIW. [More on EB-2 with a National Interest Waiver (NIW) follows below.]  Many L1-Bs will qualify for an EB-2 immigrant visa as a “professional” with an advanced degree (with a labor certification), however, these folks might alternately arrive as an H1-B.H1-Bs are required to prove the “employer-employee relationship” and this realitymakes this a more difficult approach for an entrepreneur.  A board of directors or partners make it more feasible but less desirable to a true entrepreneur.  The qualifications for an H1-B specialty worker non-immigrant visa are more difficult to meet than an L non-immigrant classification and they are capped, highly sought after and very competitive.An Obvious Alternative to the EB-5 is the EB-2 (Usually with a NIW)A more likely path for an entrepreneur who cannot meet the EB-5 requirements isthe EB-2 immigrant as either a “professional with an advanced degree” or an alienof “exceptional ability” in the sciences, arts, professions, or business.There are FOUR specific broad “contexts” in which to seek this visa as an alien ofexceptional ability. Do not forget to frame the I-140 and supporting evidencewithin ONE of these contexts. Each of these contexts has branches or sub-disciplines.If there is an employer or partner; or the alien is a principle, co-owner orstockholder, then the “employing business” might be able to obtain a permanentalien labor certification for the entrepreneur.Whether as a “professional” or “of exceptional ability” one must show a basicsubstantial prospective benefit to the national economy, cultural or educationalinterests, or welfare of the United States.By Joseph P. Whalen (non-attorney) October 18, 2011 Page 2
  3. 3. The National Interest Waiver (NIW) is an EXTRA Benefit for EB-2sThe requirements for the NIW are defined via AAO Precedent rather than throughregulations or the statute. The one case that addresses the issues involved is Matterof New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998)(NYSDOT).  First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit.  Second, it must be shown that the proposed benefit will be national in scope.  Third, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.Additional resources are found at: http://www.slideshare.net/BigJoe5Specific Articles and Tools include:http://www.slideshare.net/BigJoe5/eb2-entrepreneurs-final-hurdle-to-obtain-niwhttp://www.slideshare.net/BigJoe5/eb5-and-eb2-entrepreneur-cheatsheethttp://www.slideshare.net/BigJoe5/potential-for-an-h1b-entrepreneurhttp://www.slideshare.net/BigJoe5/l-nonimmigrant-entrepreneur-path-to-a-greencardhttp://www.slideshare.net/BigJoe5/certain-multinational-executives-and-managershttp://www.slideshare.net/BigJoe5/e11-extraordinary-ability-evidence-worsheet-fillable-form-revhttp://www.slideshare.net/BigJoe5/l-non-immigrant-precedent-decisions-19701989presenthttp://www.slideshare.net/BigJoe5/a-review-l-non-immigrant-of-intracompnay-transferees-6292011-jwhttp://www.slideshare.net/BigJoe5/l-non-immigrants (regulations)http://www.slideshare.net/BigJoe5/a-realistic-look-at-an-eb2-niw-entrepreneurhttp://www.slideshare.net/BigJoe5/eb-2-niw-aao-nonprecedents-of-2010http://www.slideshare.net/BigJoe5/eb2-niw-entrepreneur-examplehttp://www.slideshare.net/BigJoe5/niw-supplemental-worksheet-medical-research-examplehttp://www.slideshare.net/BigJoe5/a-survey-of-the-immigrant-investor-visa-1966-2011-june-27-2011-jwhttp://www.slideshare.net/BigJoe5/business-plan-and-the-economic-model-and-evidence-considerations-for-an-i-924-may-17-2011By Joseph P. Whalen (non-attorney) October 18, 2011 Page 3

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