Getting a green card (also referred to as a permanent resident card) is a long-term solution for startup founders who want to commit to growing their business in the U.S.
The flexibility of the U.S. green card makes it easy for serial entrepreneurs to launch numerous companies without having to get a visa for each of them. It also makes it easy to quickly switch employers when necessary. Gaining permanent residency through a green card can also be an excellent option if you have a family and would like to make the U.S. their permanent home.
Since the green card process can take a long time, begin thinking about it now. It could take anywhere from a year to a decade, depending on where you were born and what type of green card path you take.
There are two steps to getting a green card based on your employment. The first step is filing an employment petition that gets you “in line” to file your actual green card application. Depending on the type of petition, it could take anywhere from a few weeks to over a year to be approved. The most common employment-based (I-140) petitions for startup founders are EB-2 NIW and EB-1A, which we will discuss in more detail below.
You’ll also need to file a separate green card application for yourself and any dependents you may have (spouse and unmarried children under 21). The green card application is Form I-485, and it can be filed at the same time as your I-140, while your I-140 is pending, or after it is approved. We discuss these options in more detail here.
If you are in the U.S., you will also need to make sure that you have valid work authorization while your I-140 and I-485 are being processed. There are a lot of great startup founder visa options available. Chat with our team if you would like to discuss what options would work best for you.
Now, let’s discuss the EB-2 NIW and EB-1A startup founder green cards:
EB-2 NIW: Commonly referred to as EB-2 NIW, this is the employment based second preference National Interest Waiver immigrant visa.
You must have either an Advanced Degree (U.S. Masters or foreign equivalent, or U.S. Bachelors or foreign equivalent plus five years of post-Bachelors work experience) or meet three of six “Exceptional Ability” criteria.
In addition, you must qualify for the National Interest Waiver by showing that you meet three criteria:
- Your proposed work in the U.S. has National Importance and Substantial Merit
- You are well-positioned to succeed
- It is beneficial for the U.S. to waive the PERM requirement
Why the EB-2 NIW is a great choice for most founders:
First things first, the EB-2 NIW has a fairly high approval rate. In addition, the EB-2 NIW waives the PERM process, which can add an additional year to the wait time. As an added bonus, 45-day premium processing now available for EB-2 NIW petitions.
EB-2 NIW criteria for startup founders:
The criteria for the EB-2 NIW also make it a great fit for startup founders. In addition to having an Advanced Degree or Exceptional Ability (described above), you’ll need to provide evidence that you meet three National Interest Waiver criteria. Here is how these criteria apply to startup founders:
1: Your proposed work in the U.S. has National Importance and Substantial Merit
To start, the first criteria of the NIW, National Importance and Substantial Merit, is forward-looking. Instead of looking at past achievements, this criteria is focused on your future plans, even if your startup is at an early stage right now.
Think about the future impact of your startup and how it will positively impact the U.S. in regards to the economy, U.S. businesses, education, health, or other areas. This is the kind of evidence that we’ll include to prove that your work has National Importance and Substantial Merit.
2: You are well-positioned to succeed
The second criteria looks at your past achievements, as well as any other factors that might indicate your future success, to determine that you are well-positioned to succeed with your future endeavors.
Evidence of the second criteria could include a degree that relates to your work at your startup, your success in past roles, press articles about you, your participation in incubators or accelerators, any awards you have received, proof that your company is supported by venture capital firms, proof that you have a customer base or even customer interest, the list goes on.
There are no strict requirements about what you have to show as evidence that you are “well positioned” so you can use the material that makes sense for your case.
3: It is beneficial for the U.S. to waive the PERM requirement
The third criteria weighs whether or not it is beneficial to the U.S. to waive the PERM labor certification process, which is required for regular EB-2s but waived for EB-2 NIWs.
Since the PERM process requires posting jobs and gathering evidence to show no other qualified people exist for the role, it makes sense to waive it if you are the founder of a company.
In this criteria we’ll touch on the importance of your work again, and why it would not be worth it for the U.S. to wait while you go through the PERM process.
What to be aware of:
The EB-2 NIW is usually not the best choice for individuals who were born in India or China, or for individuals who qualify for the EB-1A and need a green card quickly. This is because the wait times to get your actual green card can be significantly longer as compared to the EB-1A, especially for individuals born in India and China.
EB-1A: Commonly referred to as EB-1A, this is the employment-based first preference immigrant visa.
To qualify for the EB-1A, you must first either have received an internationally recognized prize or award, such as a Nobel Prize, Pulitzer, Oscar, or Olympic Medal, or meet three of ten Extraordinary Ability criteria, which you can find here.
The USCIS officer that reviews your case must also be convinced that you sustained national or international acclaim in your field, which should be demonstrated through your overall qualifications and background.
Why EB-1A is a great choice for some founders:
There are significant advantages for individuals who meet the criteria for the EB-1A, especially for individuals born in India or China. Pursuing a green card through the EB-1A as compared to other green card routes could reduce wait time significantly depending on your birth place (read more about understanding the visa bulletin here).
EB-1A can be filed with premium processing as well, which means that you will receive a decision from USCIS within 15 calendar days of filing your EB-1A. You will still need to wait for your green card to be approved, though.
EB-1A criteria for startup founders:
In addition, many of your accomplishments as a startup founder may align with the EB-1A criteria. An example of an EB-1A startup founder’s criteria could include:
- Published Material: Numerous articles have been published about you in top news outlets such as New York Times, Forbes, and CNN
- Judging: You have judged numerous prestigious business events, such as selecting startup founders to be accepted into Y Combinator or TechStars
- Original Contributions: You created patented technology that is being used by hundreds of thousands of users
- Critical Employment: Before you founded your startup, you were in a critical role at a well-known company, such as being a Director, VP, or C-Suite executive
- High Remuneration: Before you founded your startup, you were paid well above your peers at your former employer (think $300,000.00 or more)
Keep in mind that this is just an example. You might be qualified for the EB-1A with very different kinds of qualifications, so it's a good idea to chat with our team if you’d like to figure out what your EB-1A profile might look like.
What to be aware of:
The EB-1A is the most difficult immigrant visa to get approved. Ideally, you should meet more than the minimum of three criteria, and your qualifications should show that you are at the top 1% of your field. Not everyone will be able to get an approved EB-1A.
However, it is worth noting that for some individuals, especially those born in India or China, the EB-1A may be worth trying (even if you have a potentially weaker case) since the reward (saving sometimes up to 10 years) may outweigh the risk of being denied.
If you are considering your future as a permanent resident in the U.S., it can be helpful to talk with a qualified immigration expert about your unique situation. We have worked with hundreds of startup founders like yourself to help them navigate U.S. immigration. You are not alone! Reach out to us if you’d like to discuss your options.