Helping Skilled International Workers Obtain U.S. Employment-Based Visas

The National Interest Waiver (NIW) is a provision in United States immigration law that allows certain foreign nationals to request a waiver of the job offer and labor certification requirements for obtaining an employment-based green card. The NIW allows foreign nationals to self-petition for a green card.

Those pursuing an NIW must first qualify for an EB-2 by showing evidence of an advanced degree or exceptional ability. The proposed endeavor must also meet three USCIS requirements:

• The proposed endeavor has both substantial merit and national importance
• The foreign national is well-positioned to advance the proposed endeavor and
• Waiving the job offer and, thus, the permanent labor certification requirements would benefit the United States.

If seeking an NIW, Form I-140, Immigrant Petition for Alien Worker must be submitted.

The EB-5 visa is an investment-based immigration program. To qualify, applicants must invest in new or at-risk commercial enterprises and create or maintain at least ten full-time jobs. The program’s overall aim is to stimulate the U.S. economy.

There are two paths for immigrant investors to take when applying for an EB-5:

1. The most common path is through a USCIS-designated regional center. This route allows investors to count indirect and direct jobs that their venture creates. Utilizing a regional center is generally the most straightforward route.
2. Direct EB-5 investment is often more challenging and does not use a regional center. The investor must create the new commercial enterprise and at least ten direct full-time jobs.

EB-5 Capital Investment Requirements

Capital is legally obtained cash, and all real, personal, or mixed tangible assets are owned and managed by the immigrant investor. As of March 15, 2022, the minimum investment amount is $1,050,000. If the investment is in a Targeted Employment Area (TEA), the amount is $800,000 (including infrastructure projects). A TEA is either a rural area or an area with high unemployment rates (at least 150% of the national unemployment rate). This rate will be adjusted every five years, with the next adjustment scheduled for January 1, 2027.

EB-5 Job Creation Requirements

EB-5 investors must create full-time positions for ten employees. A new commercial enterprise within a regional center can directly or indirectly create full-time positions. Investors must directly create these positions for a new commercial enterprise that is not within a regional center. The EB-5 investor can rely on job maintenance if investing in an at-risk business.

Numerous types of enterprises can qualify for an EB-5, such as a sole proprietorship, partnership, holding company, joint venture, corporation, business trust, limited liability company, or other publicly or privately owned entity. Once an EB-5 immigrant visa is granted, the investor, their spouse, and children under 21 are given conditional residence for two years. After two years, new forms must be filed in order to be granted permanent residency.