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The Self-Petition: Applying for a visa even without a job offer

The Self-Petition: Applying for a visa even without a job offer

When making the decision to come to the United States to pursue and/or continue a career, it’s important to understand your options and what may work best in your case.  If your ability and career track record can be described as “extraordinary,” if you have an advanced degree or “exceptional” ability, or if you’re an entrepreneur and want to invest in the US; you may be able to self-petition.  So, which visa is right for you?  Read on to learn more about the options and requirements.

EB-1 “Extraordinary ability”

Eligibility for EB-1 rests in your talents.  There is a list of things the government will be reviewing to see if you truly have “extraordinary ability.”  You may be required to show that you have won a major international award (think Academy Award or Nobel Prize), a smaller international award, that you are paid more than most in your field, that you and your work have been featured in major media outlets, that you have authored scholarly articles about your field of expertise, and so on.

Unfortunately, EB-1 “Extraordinary ability” visas are difficult to attain.  Certainly, the name of the visa itself shows that very few people will qualify.  If you don’t feel that you’re at the “top of your game” within your country and internationally, this may not be the best route for you.

EB-2 “Exceptional ability” with National Visa Waiver

Only slightly less impressive than EB-1’s “extraordinary ability” is the EB-2 “exceptional ability.”  Much like the EB-1(a), you need to show that you have something special.  There are two paths to the EB-2:  one path includes a sponsor (i.e. an employer) and one path leads to a self-petition.

In order to self-petition, you’ll need to show that either a) you have an advanced degree or foreign equivalent (or that you have a bachelor’s degree or equivalent plus five years of experience in the field), OR that you have exceptional ability.  You can show exceptional ability by providing evidence of three of the following:

  • At least 10 years of full-time experience in the field in which you’re applying;
  • A license or certification for a profession;
  • A high salary relative to others in the field;
  • Membership in a professional association; or
  • Recognition for achievements and significant contributions to the industry.

Once you’ve shown that you qualify for an EB-2 visa, in order to self-petition, you must pass the “Dahanasa” test.  If you can provide sufficient evidence, you will be able to get a EB-2 visa to work and live in the U.S. without a job offer or a sponsor. The Dahanasa test has three prongs:

  • Your proposed venture has “substantial merit” and “national importance”;
  • You are qualified and able to successfully launch and run the proposed venture;
  • “On balance” it would be beneficial to the US to waive the requirements of a job offer and labor certification.

E-1 Treaty Trader and E-2 Investor Visa

Another option for those who wish to self-petition is to invest in the United States and get permission to live and work here.  If you live in a treaty country and want to invest in a new or existing company in the US, you can become an E-1 Treaty Trader or an E-2 Investor.  These visas are non-immigrant visas, which means they will never turn into permanent residency.  (In other words, you won’t ever get a green card as a result of having these visas.) However, the visas are good for two years and are renewable indefinitely.

In addition to being from a treaty country, to qualify as an E-1 Treaty Trader, you must provide evidence that you do the following:

  • Direct “substantial trade” as a business; and
  • Direct “principal trade” between the US and your treaty country.

To qualify as an E-2 Investor, you must provide evidence of the following:

  • You will invest in a new or existing business in the US;
  • Investment must be in a “bona fide enterprise” and should be significant;
  • You possess the funds that will be invested; and the funds must be committed to your enterprise;
  • Money can be traced;
  • Your reason for applying for the visa is solely to come to the US to develop and direct the enterprise.

EB-5 Investor

If you’re an investor who is truly ready to make a splash in the US economy, the EB-5 may be for you.  In order to be eligible, you must be willing, ready and able to invest a minimum of $500,000 (and in some cases, $1,000,000).  The EB-5 is an immigrant visa, which means that if you get the visa, you will get a green card.  There is a limit to the number of EB-5 Visas that are allowed each year, so there may be a waiting period.  However, if you can provide evidence of the following, you may be well on your way to a visa.

  • Minimum $500,000 (in an “Targeted Employment Area”) capital investment;
  • The enterprise must create 10 full-time U.S. jobs for at least two years;
  • You must invest in a for-profit U.S. commercial enterprise.

At Rupert Law Group, we ensure that every case is reviewed and analyzed individually.  No two individuals are alike, and no two cases are alike.  To that end, we consult with you to give you the best advice for your case.  Contact us today for a consultation about the best way for you to realize your American dream.