Updated: Oct 12, 2020
This paper is part of ProfVal's series on EB visas
In the startup world, a company valued at over a billion dollars is often referred to as a unicorn. Startup unicorns are much easier to see than the unicorns of myth. Last year (2019), the United States had more unicorns (203) than any other country, except for China, which had 206. (1) The average unicorn employs approximately 1,200 people.(2)
To create conditions for more unicorns in the U.S., it is worth looking at the characteristics of our herd.
Of the 203 unicorns in the U.S., over half had at least one “immigrant founder” (3). They include household names like Tesla, Zoom, Uber, Instacart, Slack, Moderna Therapeautics, Peleton, and Oscar Health Insurance. The success of the U.S. is, in considerable degree, a consequence of providing the right mix of exceptionalism (whether homegrown or grown in another land) and a heavy sprinkling of the magical American Dream.
But the success of these companies is not just magic.
You may be surprised, given the current discourse regarding immigration, that leveraging worldwide skills to promote success within the U.S. was the impetus behind the bipartisan Immigration Act of 1990, which – among other important things – created the EB visa category.
Introduced by Democrat Ted Kennedy, voted on with bipartisan support from elected officials, and enacted by Republican President George H. W. Bush, the “Immigration Act of 1990” (S.358) represented a sweeping reform of U.S. immigration policies. Among other things, President Bush noted that S. 358 “dramatically increases the number of immigrants who may be admitted to the United States because of the skills they have and the needs of our economy” (4) by providing for 140,000 skill-based immigrant permanent visas for qualified persons and their families. (5)
President Bush asserted that the EB visa category promotes U.S. exceptionalism through the “cultivation of a more competitive economy” (6) by enabling extraordinarily talented persons to contribute to the U.S. This approach might be compared to recruiting elite athletes onto your favorite sports team and, in fact, could be enabled by an EB visa.
Not all, or even many, immigrants will be famous or produce unicorns. But immigrants can contribute to the success of the U.S. through legal work-based visas in many ways. Like other visas such as the H-1B, which is exclusively for specialty occupations, the EB visa is for persons with abilities that aligned to skills that the U.S. government has identified as important to the success of the United States.
The EB-1 is for persons with “extraordinary ability” in various categories such as business, sports, academics (professors or researchers), and management. People who might qualify for an EB-1 could include the CFO of a global software company, an Olympic medalist, or a world-renowned researcher. Learn more about the EB-1 here.
The EB-2 is for people with “exceptional ability” in a variety of areas. While it is viewed as a “second preference” compared to the EB-1, demonstrating exceptional ability represents meeting at least three stringent criteria. Examples might include a serial entrepreneur, a successful dentist, or a professional (physical therapist, marketing expert, financial advisor) with ten years of experience along with impressive academic credentials and/or related certifications. Learn more about the EB-2 here.
The EB-3 is for persons in professions that are for “skilled” workers, “professionals,” or certain “unskilled” workers. For skilled and unskilled workers, one’s employer must demonstrate (among other things) that the position would require no less than two years of training. The category of “professionals” is – in some ways – similar to an H-1B in that both require a bachelor’s degree as an entry requirement into the role.
The EB-4 is for special classes of visas including religious workers, some types of physicians, employees of the United States government, and other categories.
Sometimes called an investor visa, the EB-5 is for persons who have invested between $900,000 and $1.8 million dollars in a business that employs at least 10 full-time U.S. workers
Of these different types of visas, the most common are the EB-1, EB-2, and EB-3. Approximately 40,000 visas are issued annually within each of these categories and account for about 120,000 of the 140,000 EB visas issued.(7)
For most employment-based visas – which include the H-1B and L as examples – a labor certification is a necessary part of the visa process. In a labor certification, the beneficiary must have a job offer from an employer who evaluates the number of U.S. workers available for a job and the effect of the “alien’s employment on the wages and working conditions of U.S. workers similarly employed.” (8) Labor certifications are required for all U.S. companies that seek to hire someone on an employment- based visa based on specialized job skills, or because U.S. employees are not available.
A labor certification is required for some EB-2 visas and the EB-3 visa. It is not required, however, for the EB-1, EB-2 NIW, the EB-4, or the EB-5.
In our next papers, we discuss the EB-1 and EB-2 National Interest Waiver (NIW) visa categories. Unlike the EB-5, there is no need to provide proof of high levels of personal wealth for these visa categories.
Neither ProfVal nor this paper provides legal advice. If you would like us to suggest a lawyer to work with, ProfVal would be happy to refer you to an immigration attorney that we respect.
ProfVal, LLC (profval.com) is a purpose-driven, professor-founded, and ethically-grounded provider of Expert Opinion Letters that can be used to support employment-based visas (H-1B, L1, EB, O). ProfVal is dedicated to helping clients through services built based on an architecture of research. ProfVal is dedicated to helping our communities through our giving site, profval.org.
Zachary Johnson, Ph.D. is the founder of ProfVal, LLC. ProfVal provides Expert Opinion Letters and Academic Equivalency Evaluations to support employment-based visa applications. He has over a decade of experience as a professor, academic researcher, academic program developer, and leader in academics. He has worked with members of the Fortune 500, startups, and nonprofits and has been quoted in US News and World Report, Innovate LI, News Day, Adelphi Business Review, and the AACSB.