Immigrating To The United States: EB-2 Or EB-5 Visa?

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Harvey Law Group

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Harvey Law Group (HLG) is a leading multinational law firm headquartered in Hong Kong with over 20 offices worldwide. Founded in 1992 by Jean-François Harvey, HLG has an extensive track record and deep sector expertise in immigration law. The HLG team provides legal and advisory services to individuals and families on immigration, residency and citizenship, as well as a comprehensive range of business services for international corporations across multiple jurisdictions in Asia, North and South America, Europe, Africa and the Middle East. HLG is a Foreign Law Firm registered with the Law Society of Hong Kong Its lawyers are qualified and registered in various jurisdictions including, Québec and Ontario Bars in Canada, England & Wales, France, Thailand, Vietnam and Grenada. https://harveylawcorporation.com/
Immigrating to the United States is undoubtedly much sought-after for many people around the world.
United States Immigration
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Immigrating to the United States is undoubtedly much sought-after for many people around the world. The EB-2 and EB-5 visa categories would grant you, your spouse, and children under 21 Green Cards (permanent residency status) after which US citizenship can be obtained after merely 5 years of residence in the US. Obtaining either of these immigrant visas would be highly desirable.

The main distinction between the two visa categories is that the EB-2 visa would require you to have a sponsoring employer (unless applying for a national interest waiver) whereas the EB-5 visa would only require a qualifying investment. Each visa has its own distinct criteria and would reap its own set of unique benefits.

EB-2

The EB-2 program would offer you the benefit of faster processing times. Premium processing has recently become available for EB-2 applicants. If you apply for premium processing, you will receive a response from USCIS on your petition within 45 calendar days. You will need to pay a fee of USD 2,500 for premium processing. This is a major benefit of the EB-2 program, as your application could take up to several years to process under other visa categories. Compared to the EB-5 program, it would also require a much smaller financial commitment on your behalf, even if you choose to qualify for the EB-2 visa through beginning your own start-up business.

To be eligible for the EB-2 visa, you must either:

  • Possess an advanced degree, meaning a baccalaureate or foreign equivalent degree plus 5 years of post-baccalaureate, progressive work experienced in the field; or
  • Be able to show 'exceptional ability in the sciences, arts, or business', which means 'a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business'. Proving exceptional ability would require meeting at least three of the following criteria:
    • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability;
    • Letters from current or former employers documenting at least 10 years of full-time experience in your occupation;
    • A license to practice your profession or certification for your profession or occupation;
    • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability;
    • Membership in a professional association(s);
    • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations; and
    • Other comparable evidence of eligibility is also acceptable.

Petitions under the EB-2 visa must usually be accompanied by a certified Application for Permanent Employment Certification from the Department of Labor (permanent labor certification). A permanent labor certification allows an employer to hire a foreign worker to work permanently in the United States. Your employer must be able to prove that they are able to pay you the offered wage as of the priority date and can continue to pay you this wage until lawful permanent residence status is obtained. Usually, this can be proven with an annual report, a federal income tax return or audited financial statement. This requirement may be waived by USCIS if you apply for a national interest waiver, if USCIS finds that your proposed endeavor has both substantial merit and national importance, you are well positioned to advance the endeavor and on balance it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

One option to qualify for the EB-2 visa would be to begin your own start-up business. You could do so with the help of a business incubator. The business incubator would guide you throughout the process of setting up your start-up business, including mentorship, financing, and training, etc. In addition to possessing an advanced degree, you would need to make a financial commitment towards the start-up business. The EB-2 visa program with an incubator may require an investment of at least USD 300,000 (of which USD 100,000 must be reserved for research and development). The start-up business project must have substantial merit, be of national importance and be beneficial to the U.S. and you must demonstrate that you are an innovative entrepreneur that is well positioned to advance the venture. You would also need to possess an advanced degree and have work experience that includes management experience.

EB-5

Whereas the EB-5 visa requires a financial commitment of at least USD 800,000 and involves either setting up a New Commercial Enterprise (NCE) (this would be any for-profit activity formed for the ongoing conduct of lawful business, such as a sole proprietorship, a partnership, a joint venture, corporation or limited liability company) or making an investment into a designated regional center. You would not need to have a sponsor and the requirements are straightforward – you would only need to invest in a US business and your investment must meet the statutory requirements for job creation.

You, your spouse, and your unmarried children under 21 are eligible to apply for lawful permanent residence under the EB-5 visa category if you:

  • Make the necessary investment in a commercial enterprise in the United States of which must be located in a Targeted Employment Area (TEA) or outside a TEA of which the minimum qualifying investment (of which the minimum qualifying investment made inside the TEA is USD 800,000 and the minimum qualifying investment made outside the TEA is USD 1,050,000); and
  • Plan to create or preserve 10 permanent full-time jobs for qualified workers.

You could meet these requirements through either making a Direct Investment or an Investment via a Regional Centre:

  • Direct Investment:
    • Set up a New Commercial Enterprise (NCE) (this would be any for-profit activity formed for the ongoing conduct of lawful business, such as a sole proprietorship, a partnership, a joint venture, corporation or limited liability company);
    • Make the necessary investment into the NCE; and
    • The NCE must directly create 10 permanent full-time jobs for qualified US workers.
  • Investment via a Regional Centre:
    • Does not require you to set up an NCE, but your investment would need to meet the statutory job creation requirements based on economic projections counting direct and indirect jobs.

An important feature of this program is that it grants a conditional Green Card (Permanent Residence in USA) for 2 years after which you would need to prove that you officially created 10 jobs or invested in the United States in order to remove the conditions on your temporary Green Card.

Both the EB-2 and EB-5 programs are interesting options that could be suitable for many people. If you are interested in applying for either the EB-2 visa or the EB-5 visa, please visit here for more details on Harvey Law Group's EB-2 visa program and here for more details on Harvey Law Group's EB-5 visa program.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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