EMPLOYMENT BASED IMMIGRATION

U.S. permanent residence (commonly referred to as green card status) may be gained through a range of employment-based (EB) immigration options. The employment-based immigration categories are referred to as such because they are based on a foreign worker’s particular occupation and skills. The employment-based categories consists of five preference categories that are subject to annual visa limits. Available visas are issued to beneficiaries in order of their priority date (the date of filing of the labor certification, if one is necessary, or the date of filing the I-140 petition).

To see the applicable priority dates for each employment-based category, click here.

The First Preference (EB-1)

The first preference category does not require filing of the labor certification. Persons falling under the first preference category are not required to establish that there are no qualified U.S. workers available for the proposed position. The first preference consists of: (a) persons of extraordinary ability, (b) outstanding professors and researchers, and (c) multinational executives and managers.

Persons of extraordinary ability must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics and must meet 3 out of the 10 listed criteria below to prove extraordinary ability in the field:

• Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
• Evidence of your membership in associations in the field which demand outstanding achievement of their members
• Evidence of published material about you in professional or major trade publications or other major media
• Evidence that you have been asked to judge the work of others, either individually or on a panel
• Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
• Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
• Evidence that your work has been displayed at artistic exhibitions or showcases
• Evidence of your performance of a leading or critical role in distinguished organizations
• Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
• Evidence of your commercial successes in the performing arts
• 
  

Outstanding professors and researchers must be internationally recognized as outstanding in their specific academic area, have a minimum of three years of experience in teaching or research in the area, and be entering the U.S. in a tenure or tenure track teaching or comparable research position at an institution of higher education.

Multinational executives and managers must have been employed as a manager or executive outside the United States for the same U.S. employer, subsidiary, or affiliate of the U.S. employer for at least one year within the last three. They must also be entering the United States to work as a manager or executive of the U.S. employer.

The Second Preference (EB-2)

The second preference category includes: (a) members of the professions holding advanced degrees and (b) aliens who, because of their exceptional ability in the sciences, arts, or business, will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.

To qualify as a member of the professions the alien must have an advanced degree (degree above that of a baccalaureate or a baccalaureate degree plus 5 years progressive work experience in the field).

Employment-based, second-preference petitions must generally be accompanied by an approved individual labor certification from the Department of Labor on Form ETA-750.

To qualify as an alien of exceptional ability for the purpose of second preference classification, the individual must have a degree of expertise in the sciences, arts, or business significantly above the ordinary as shown by evidence satisfying 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 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
• Other comparable evidence of eligibility is also acceptable.

Under the second preference category, the foreign worker must have a job offer and obtain a labor certification for the proposed position.

However, the alien may seek an exemption from the labor certification if it can be shown that the alien’s admission would be in the national interest. Then the alien may self-petition and may file the labor certification directly with USCIS along with the Form I-140, Petition for Alien Worker.

Spouse and children under the age of 21of the alien may be admitted to the United States. Alien’s spouse is eligible to file for an Employment Authorization Document (EAD).

The Third Preference (EB-3)

The third preference consists of skilled workers, professionals, and “other workers”. Skilled workers are those whose positions require a minimum of two years of training or experience. Professionals must possess a bachelor’s degree in the field and must establish that a bachelor’s degree is the normal requirement for entry into the profession. The final category of “other workers” means essentially unskilled workers.

Third preference workers must have a job offer and obtain a labor certification.

Spouse and children under the age of 21of the alien may be admitted to the United States. Alien’s spouse is eligible to file for an Employment Authorization Document (EAD).

The Fourth Preference (EB-4)

The fourth preference category includes special immigrants:

• Religious Worker
• Special Immigrant Juveniles
• Broadcasters
• G-4 International Organization or NATO-6 Employees and Their Family Members
• International Employees of the U.S. Government Abroad
• Armed Forces Members
• Panama Canal Zone Employees
• Certain Physicians
• Afghan and Iraqi Translators
• Afghan and Iraqi Nationals Who Have Provided Faith Service in Support of U.S.
• Operations

The Fifth Preference

(EB-5 Immigrant Investor Program)

Foreign investors must meet specific U.S. CIS requirements to obtain their permanent residency through the EB-5 visa program. In general, the investor must make the necessary investment in a commercial enterprise in the United States; and plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.

EB-5 visa applicants are typically required to make either a $500,000 or $1 million capital investment amount into a U.S. commercial enterprise. The EB-5 investment can take the form of cash, inventory, equipment, secured indebtedness, tangible property, or cash equivalents.

EB-5 visa applicants, their spouse, and their children under 21 will obtain their permanent residency green card once all requirements have been successfully met and approved by the U.S. CIS.

While each person’s legal situation is different, there are times when you really should consult with a lawyer you trust.

To schedule a consultation please contact us at (718) 596-8888.