Employment-Based Immigration

Multinational Executives and Managers (EB-1)

Permanent residency is available in the EB-1-3 category for executives and managers coming to work in the US for an employer that is related to a company the applicant worked for prior to entering the US. The category is very similar to the L-1 intracompany transfer non-immigrant category.

There are a number of requirements to qualify in this category.

1. The applicant must be continuously employed abroad for one year of the last three for a parent, affiliate, or subsidiary of a US employer.
2. The employer may be a company or other legal entity including a profit, non-profit, religious, or charitable organization.
3. The applicant must be coming to work for the same employer as the foreign employer or the US affiliate, parent, or subsidiary.
4. The US and the foreign firm must have common majority ownership.
5. The applicant must be coming as a manager or executive.
6. Persons coming to open up a new office in the US will not be eligible for EB-1 status until the new office has operated for more than a year.

The EB-1-3 green card is attractive because it is fast, there is no labor certification required, the INS has less leeway to deny if the applicant meets all the regulatory requirements and one without a university education can still qualify. 

Foreign Nationals of Extraordinary Ability (EB-1)

The Extraordinary Ability category is open to aliens with extraordinary ability in sciences, arts, education, business or athletics who have been able to demonstrate sustained national or international acclaim and whose achievement have been recognized in the field through extensive documentation. The applicant must also state that his or her entry will substantially benefit prospectively the US. A labor certification is not required, thus saving the applicant multiple months and major headaches.

Under this category, the alien does not need to have an offer of employment. But the application does need to document that he or she intends to pursue work in the US in his or her area of expertise.

To demonstrate "sustained or international acclaim" and the recognition of the applicant's work, the applicant must submit evidence of a one-time achievement such as a major international award (Nobel Prize, Academy Award, etc.) or three OR MORE of the following:

- receipt of lesser nationally or internationally recognized prizes or awards.
- membership in association.
- published materials of major significance.
- authorship of scholarly articles in the field.
- artistic exhibitions or showcases
- performance in a leading role for establishments that have a distinguished reputation.
- high salary in the field.
- commercial success in the performing arts.
- other evidence of extraordinary ability not listed in one of the above.

Workers with Advanced Degrees/Exceptional Ability (EB-2)

For the vast majority of employment-based permanent residency applicants, the only option ever considered is the labor certification process. The labor certification application process requires an employer to conduct a labor market test in order to demonstrate that no US workers with minimum qualifications are immediately available to fill the position for which the visa applicant is being considered.

For applicants qualifying for the EB-2 employment category, the labor certification may be waived if the applicant can demonstrate that the applicant's admission is in the national interest. The EB-2 category is open to individuals who are professionals holding advanced degrees and for workers with exceptional ability.
For purposes of the EB-2 category, an applicant will be considered to have the equivalent of a master's degree if he or she has a bachelor's degree and five years of progressive experience. However, experience may not substitute for a bachelor's degree.

Exceptional ability can be demonstrated if the applicant can show at least three of the following:

- An official academic record;
- Letter(s) from employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
- A license or certification for a particular profession or occupation;
- Salary which demonstrates exceptional ability;
- Membership in professional associations;
- Recognition for achievements and significant contributions to the industry or field by peers, government entities, or professional or business organizations;
- Other comparable evidence.

Assuming that the applicant falls into one of these categories, the analysis of the national interest claim must be made.

There are a number of significant advantages to this National Interest Waiver (NIW) category. The NIW petition can be approved in a matter of weeks or a few months;
there is no requirement to have an employer petitioner. However, one who is unemployed or only working part time in his or her field will have a tough time proving national interest; there is no prevailing wage requirement. 

Skilled Workers and Professionals (EB-3)

EB-3 is available to people with a bachelor’s degree, skilled workers, and unskilled workers. There are several requirements for EB-3:

1. The alien must be offered a full-time, permanent position in the US.
2. The Department of Labor must certify that there are no available US workers.
3. The alien must meet the minimum requirements for the position offered and the employer must be able to pay the salary offered.
4. All petitions filed in the EB-3 category require a job offer and a labor certification.

Regardless of the total number of visas available in the EB-3 category, only 10,000 visas are available each year for unskilled workers. The result of this is a backlog in the “other workers” category.

Professionals who hold a Bachelor’s Degree
This category is available only to those who hold a US bachelor’s degree or its foreign equivalent. The Applicant is not able to make up for a lack of education through experience.

Skilled Workers
For a person to qualify as a skilled worker, the position offered must require at least two years training and experience. The alien must possess the requisite background.

Unskilled Workers
This category covers “unskilled labor,” defined by the Department of Labor as work that takes less than two years training or experience to perform. There are extreme backlogs in visa numbers for this category. Currently this backlog is about six years.

Applying for the EB-3 Visa
It usually requires two-step process. One must obtain the labor certification form the Department of Labor. Then, an application for an immigrant worker may be filed with INS. The form used for this petition is the I-140 Immigrant Petition for an Alien Worker. It is submitted to the appropriate regional INS Service Center along with the following documents:

1. the approved labor certification and a letter from the employer.
2. documents showing that the employer has the financial resources to pay the offered wage, which must be shown to be at least the prevailing wage.
3. Documents proving the position is within the preference category sought.
4. Evidence that the alien meets the job requirements, such as a copy of a bachelor’s degree or evidence of work experience. 

Religious Workers (EB-4)

There are 140,000 employment-based immigrant visas available each year, of which 10,000 are reserved for "special immigrants." Included within this visa category are religious workers, which is further broken down into ministers, those who work in a professional capacity for a religious organization, and those who work for a religious organization in a religious vocation.

The following are requirements for an EB-4 religious worker visa:

1. A minister or religious worker working in a professional capacity in a religious vocation or occupation for a religious organization and at the organization's request;
2. The immigrant must have worked as in the religious occupation for at least two years prior to coming to the US;
3. The religious organization must be bona fide and be recognized in the US;
4. The immigrant must be authorized by the religious organization to perform religious services.

Religious workers who are not ministers have been allowed into the US since 1990 under a program admitting up to 5000 per year.   

Investors/Employment Creation (EB-5)

There are two groups of investors under the program - those who invest at least $900,000 in "targeted employment areas" (rural areas or areas experiencing high unemployment of at least 150% of the national average rate) and those who invest $1,800,000 anywhere else.

The Applicant under EB-5 applies directly to INS, and the green card processing time is relatively short. However, the applicant is given a conditional green card upon INS approval, and the applicant must create 10 new employment positions during the next two years to remove the conditional green card status.

The EB-5 statute requires that the immigrant invest $1 million in capital to establish a new commercial enterprise. The investment may also be made in established but troubled businesses provided that the investment makes a significant change in the structure and function of the business and the applicant can show at least ten existing jobs.

A "troubled business" is one that has been in existence for at least two years and has incurred a net loss for the 12 or 24-month period prior to the applicant’s priority date, if such loss is at least equal to twenty percent of the business’s net worth prior to the loss.

A new commercial enterprise is either the creation of an original business; the purchase of an existing business if reorganization results; or the expansion of an existing business by investment of the required amount of capital is it creates a substantial change in the net worth or number of employees. A substantial change is an increase of 40%, so that the post-expansion net worth or number of employees is at least 140% of the pre-expansion level.

Family based Permanent Residency (Green Card):

If you are a US Citizen you may petition for the following foreign national relatives to immigrate to the United States:

- Husband or wife;
- Unmarried child under 21 years old;
- Unmarried son or daughter over 21;
- Married son or daughter of any age;
- Brother or sister, if you are at least 21 years old; or
- Parent, if you are at least 21 years old.

If you are a lawful permanent resident you may petition for the following foreign national relatives to immigrate to the United States:

- Husband or wife;
- Unmarried son or daughter of any age.

You must file the Affidavit of Support with your petition to prove that you can support your relative at 125% above the mandated poverty line.

Preference category:

- Immediate Relatives of U.S. citizens: parents, spouses and unmarried children under the age of 21
- 1st Preference: Unmarried, adult sons and daughters of U.S. citizens. Adult means 21 years of age or older.
- 2nd Preference: Spouses of lawful permanent residents, their unmarried children (under twenty-one), and the unmarried sons and daughters of lawful permanent residents.
- 3rd Preference: Married sons and daughters of U.S. citizens.
- 4th Preference: Brothers and sisters of adult U.S. citizens.

An immigrant visa number will be immediately available for immediate relatives of U.S. citizens. The relatives in the remaining categories must wait for an immigrant visa number to become available according to the following preferences:

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