AILA Conference 2022, Day 3: EB-1A & EB-2 NIW Updates

If you are extraordinary, you can get a green card. Isn’t that awesome? There are some major changes to the NIW (National Interest Waiver) and the EB1 (Employment-Based First Preference) field, and here at the AILA (American Immigration Lawyers Association) conference, we just attended a panel with some of the best EB1A and NIW experts sharing the key findings. Let’s get to it.

Hi, my name is Joseph. I’m the managing partner here at Tsang & Associates where we solve legal problems with creative solutions. So, the legal problem is how do you prove one is extraordinary and deserves a green card from the US government? Well, there are two ways. There’s the EB2 NIW, which means you’re an advanced professional, and normal people have to wait in line, have to advertise, and make sure there’s no US worker. But because of your contribution is so important, you can skip that line and directly apply because you qualify for a National Interest Waiver. That’s the EB2 NIW. It could be self-petitioned, which means you don’t need an employer. You can directly petition for yourself, and then, based on your extraordinary ability and what you want to do, the US will give you a green card.

The second one is even better. You qualify for the EB-1A. You are the extraordinary of the extraordinary. You are the cream of the crop and the US will directly give you a green card as well. It’s much faster because you can pay for premium processing. So these are the two different ways, and there’s some major news that happened this year. Let’s start with the EB2 NIW.

The new memo by USCIS emphasized that if somebody graduated with a STEM major or has a STEM background and that background is related to the work that they’re doing, their professional development, and the work that they’re planning to do in the US, they will look upon that favorably. That is huge. The second thing is that they’re much more favorably looking at entrepreneurs who are coming into the US and starting their company. And the third thing is that it’s much easier to qualify for this national interest waiver. Before, you needed to prove that your company or business is going to create some tremendous economic or national important contribution to the US. You’re going to hire a bunch of workers, and it’s going to stimulate the economy. Of course, you need to advance these types of arguments, which makes it quite difficult for a lot of people, especially for startups and people doing research because of the ambiguous nature of this. A lot of people shy away and don’t choose to pursue it. But by the very nature of people who have advanced degrees, sometimes it takes a long time to do something that’s risky and it might fail. So now, the regulation provides that it’s much easier to qualify for this national interest waiver, provided that you’re just not going to compete with a US worker. That’s a much lower standard compared to, ‘I’m going to stimulate the economy, I’m going to do some tremendous thing that’s going to help the US as a whole.’ Now, just, ‘I’m not going to compete with anybody else. There’s no US job market for what I’m about to do. Nobody’s willing to take this risk, but I am. Sign me up. Give me a green card. That’s the idea.

Now, even if you qualify for that, some people might not choose it because EB2 NIW, you still have a priority date for many people around the world, and you don’t want to wait years and years and years. You want to get it this year, you want to get it next year, you want to get it as fast as you can. So then, you have to do the EB1A. The EB1A is for the truly extraordinary. There are ten factors, and these panelists went through every single one, talking about how this applies to entrepreneurs. So if anybody’s interested in learning, please download the full session from AGORA. It’s really good. From somebody who does a lot of these cases, they are definitely good experts.

So for the purpose of this video, instead of talking about strategy and how-to, I’m just going to show you some examples of how it is done. Traditionally, most firms do EB1A for things like doctors, professors, PhD students, people of the highest educational tier, and then prove that their citations are tremendous, and then they’re coming to the US to do some tremendous work. So they get EB1A. Our firm, on the other hand, for the past Like 15 years focus on business and entrepreneurs. 

This new memo about EB1A and how it encourages entrepreneurs is great news for the entrepreneur community for people who are executives because a lot of people build this crazy big company. They could do EB1C, but they don’t want to go through the laborious process of hiring a whole bunch of personnel. They themselves are quite extraordinary. 

We just got a case approved for a previous executive that worked at L’Oréal and L’Occitane. This person worked in the marketing department and helped create some of the new products that came about. They didn’t have any awards; they weren’t part of any memberships; they didn’t have any authorships. But because we proved that it was an original contribution, they had a high salary, and they were really important, and we got some other high-end executives to write them recommendation letters. The case got approved.

Another example is another executive from a company that went bankrupt, but before the company went bankrupt, it was actually quite a nice and big company. He won an award for being a good manager at that company. Once you win one award, you qualify to be part of an association recognized for being a good manager. There’s a magazine publication about this executive. And then, because he won this award, he gets to judge future executives and managers who are trying to win this particular award. So because he won one award, he’s part of one magazine and is a judge of other managers and executives. Now he qualified for three out of the ten requirements, and his case got approved.

The third example is the founder of a cleaning product company. He created this cleaning product 20-30 years ago, and it was tremendously successful. But then he scaled down. He won a lot of awards back then, but how do you prove he is extraordinary? Well, we showed that the patent he created is actually used by Western companies, including in the US. He doesn’t have any products in the US, but because US companies are using his patent, he has a high salary and it’s a recognized brand. We proved that he qualified for EB1A.

So, to do an EB1A or NIW case for entrepreneurs, you really have to understand the business side. You need a business team to help you write the business plan and to understand your achievements. It’s not just about talking about how great your citations are. For anybody who’s considering starting a company in the US and is quite extraordinary, you have an advance degree, you really should consider the NIW and the EB-1A route to get your green card. Because of these memos, it’s much clearer on what’s required for entrepreneurs to get a green card through the EB-1A and NIW program. If you’re interested, we have these other videos talking about how a crypto executive got a green card. This is one of my favorite case categories. If you have any questions, feel free to reach out. I’d love to talk to you more about it. Take care. Bye.