EMPLOYMENT BASED VISAS & GREEN CARDS
EB-1: The First Preference
The employment-based first preference category, abbreviated as “EB-1,” includes three subcategories, none of which requires labor certification.
Aliens of Extraordinary Ability – “EB-1(A)” or “E-11”
This visa category is for people who can demonstrate that they have risen to the very top level of their field of endeavor in the arts, science or business, and that they will continue to work in that field in the U.S. It requires either a major, internationally recognized award (such as a Nobel Prize or Academy Award), or at least three other types of evidence of accomplishments and renown, including awards of lesser prominence, press coverage, publications authored by or written about the foreign worker, and other types of evidence, depending on relevance to the field and how the foreign worker established his or her professional renown. This category does not require a job offer, but if the beneficiary opts for self-sponsorship, then evidence must be provided to show how he or she will continue to earn a living in the U.S. in the field of endeavor.
Outstanding Researchers and Professors – “EB-1(B)” or “E-12”
This visa category is for researchers and professors who can show that their work has had a wide influence in the academic or scientific community. It requires either a major, internationally recognized award (such as a Nobel Prize), or at least two other types of evidence of accomplishments and renown. It also requires a full-time and permanent, ongoing job offer from a U.S. sponsor, including researchers in any institution that has at least three full-time research staff positions, and professors at any institution of higher education in a tenured or tenure-track position. Researchers in grant-funded positions that are renewable annually may qualify, depending on the nature of assumptions inherent in the renewal process.
Multinational Managers and Executives – “EB-1(C)” or “E-13”
This visa category is for people assuming a full-time and permanent position as a senior manager or executive at a company in the U.S., who have already worked for a parent, subsidiary, affiliate or branch of that company outside the U.S. in a similar managerial or executive capacity for at least one year, if the foreign entity is still doing business abroad and retains its relationship to the U.S. company. The manager or executive must have held the managerial or executive position with the related company abroad for at least one full year within the past three years, or, if already working for the multinational company inside the United States, in the three years prior to entry as a nonimmigrant.
EB-2: The Second Preference
The employment-based second preference includes both the “Advanced-Degree Worker” category, which requires permanent alien labor certification, and the “National Interest Waiver,” which does not. It may include certain occupations in “Schedule A, Group II.”
National Interest Waivers
This visa category is for either advanced degree professionals or persons of exceptional ability who can demonstrate that they work in a field of substantial intrinsic merit, that the benefits from the work they do are national in scope, and that the national interests of the United States in the benefits provided by their work are great enough to outweigh the strong inherent benefit in protecting a job opportunity for a U.S. worker. This category does not require evidence of personal renown or broad name recognition like the extraordinary ability or outstanding researcher categories, but it does require proof of the widespread impact of the individual’s work.
There is a different kind of National Interest Waiver for physicians who undertake and agree to complete a 5-year commitment to work as a full-time primary care provider at a healthcare facility in a federally-designated shortage area or medically underserved population.
The legal standard for “exceptional ability” in the immigration regulations is fairly low, requiring 2 out of 6 types of evidence, and applies only to those seeking exemption from labor certification via a National Interest Waiver. It should not be confused with a separate legal standard defined in the labor regulations for “exceptional ability” that applies to Schedule A, Group II, a different process that also bypasses labor certification: The labor standard for “exceptional ability” is quite high, requiring international distinction in the arts or sciences. Although the Schedule A, Group II process avoids a test of the U.S. labor market, it still requires a full-time job offer, a prevailing wage determination, a posted notice on the employer’s premises at the site of the offered job, and a waiting period before the petition can be filed.
Advanced Degree Professionals
This visa category is for people who have been offered a permanent, full-time job by a U.S. employer, where the job requires an advanced degree, such as a Master’s degree or Ph.D., and where the foreign worker has the required degree or its equivalent (for some jobs, this may include a requirement of a B.A. plus five years of progressively responsible post-baccalaureate work experience) at the time the employer files for labor certification. The employer must follow a prescribed set of recruitment efforts to determine if there are any qualified U.S. workers available to fill the offered position, and must then file an electronic application under the “PERM” alien labor certification process with the Department of Labor describing those efforts. If no qualified U.S. workers apply, and the application is certified, the employer may then file an immigrant visa petition on behalf of the foreign worker with U.S. Citizenship and Immigration Services.
EB-3: The Third Preference
Professional Workers, Skilled Workers, Other Workers
This visa category is for people who have been offered a permanent, full-time job by a U.S. employer. Where the job requires at least a Bachelor’s degree and the foreign worker possesses the relevant four-year degree or its academic equivalent at the time the employer files for labor certification, the classification is Professional Worker. Where the job requires at least two years of related work experience, or an Associate’s degree and at least one year of post-degree work experience and the foreign worker possesses the required experience at the time the employer files for labor certification, the classification is Skilled Worker. Where the job requires a total of one year or less of related work experience or training, and the foreign worker possesses the required experience at the time the employer files for labor certification, the classification is Other Worker. These distinctions may make a difference in immigrant visa availability. For all residence cases involving labor certification, the employer must follow a prescribed set of recruitment efforts to determine if there are any qualified U.S. workers available to fill the offered position, and must then file an electronic application to the Department of Labor describing these efforts. If no qualified U.S. workers apply, and the application is certified, the employer may then file an immigrant petition on behalf of the foreign worker with Citizenship and Immigration Services.
Within the framework otherwise subject to labor certification, there are a certain number of visas set aside every year for certain occupations deemed “pre-certified”, where a petition may be filed directly with Citizenship and Immigration Services because the Department of Labor has found the labor certification process unnecessary. Schedule A, Group I occupations are “pre-certified” due to long-term, ongoing labor shortages of qualified workers; this group includes only Registered Nurses and Physical Therapists. Group II includes certain workers of exceptional ability in the arts and sciences, and entails evidentiary requirements similar to EB-1 classification, but excludes occupations in the performing arts and business.
EB-4: The Fourth Preference
This visa category, designated Special Immigrants, is actually a hodgepodge of several unrelated categories. It includes:
Religious workers who have been offered full-time paid employment in a religious position by a tax-exempt religious organization in the U.S., and who have at least two years of prior paid, full-time work experience in that religious profession, occupation or vocation with an organization in the same religious denomination.
Battered spouses and children who were initially sponsored for residence by a U.S. citizen spouse or parent, but who were then subjected to abuse or extreme cruelty by that petitioner.
Retiring long-term employees of international organizations (such as the U.N. or the World Bank), who have worked for the international organization in the U.S. for 15 years or more.
EB-5: The Fifth Preference
This visa category is for Immigrant Investors, foreign individuals who invest at least one million dollars of their own personal capital in a new business enterprise in the U.S. that creates at least 10 permanent, full-time jobs, other than for the investor and members of his or her own family. The minimum investment in threshold is reduced to $500,000 where the new enterprise is located in a designated Regional Center, or Target Employment Area. The definition of a qualifying capital investment has been interpreted narrowly by US Citizenship & Immigration Services.
This category involves a two-step process: the investor must first file a petition documenting the initial investment of personal capital, identifying the legal source of the capital, demonstrating ownership and control of the funds, and establishing the creation of a new active business enterprise in the U.S. Within two years, the investor must then file a second petition to document that the new enterprise is still in business, that the full required amount of capital was in fact invested, and that the requisite number of full-time jobs have been created by that new business enterprise.