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Employment-Based Immigrant Visas

There are five (5) preference categories under the employment-based (EB) immigrant categories. Foreign nationals, regardless of background, must meet the admission requirements of any one of these categories if they wish to immigrate to the United States.

EB-1: First Preference

Employment-based first preference, or EB-1 is a “fast-track” immigrant visa category, which is exempt from the labor certification application requirement. Individuals who qualify under any of its three (3) sub-categories listed below, can immediately file an I-140 immigrant visa petition with the U.S. Citizenship and Immigration Services (USCIS).

Alien of Extraordinary Ability (EB-1A or E-11)

Alien of Extraordinary Ability (EB-1A or E-11) includes persons with extraordinary abilities in the sciences, arts, education, business or athletics. This is usually available to an individual who is one of that small percentage who have reached the very top of the field of endeavor. The individual must also show sustained national acclaim and that his or her achievements have been recognized in the field of expertise. Those who meet the regulatory standards do not need a job offer, and may file a self-sponsored petition. In other words, they do not need an employer to sponsor an immigrant visa petition on their behalf.

Outstanding Professors and Researchers (EB-1B or E-12)

Outstanding Professors and Researchers (EB-1B or E-12) includes professors and/or researchers who are recognized internationally as outstanding in a particular academic field.

To qualify based on sponsorship by an institution of higher education such as a university or college, the foreign national must have:

  1. At least three years of experience in teaching or research in the academic area; and,
  2. An offer of permanent employment – i.e. either tenured, tenure-track or for a term of indefinite or unlimited duration, and in which an employee would ordinarily have an expectation of continued employment unless there is good cause for termination.

To qualify based on sponsorship by a private employer, the department, division or company must:

  1. Show that it employs at least 3 persons full-time in research positions; and,
  2. Have achieved documented accomplishments in an academic field.
Multinational Executives or Managers (EB-1C or E-13)

Multinational Executives or Managers (EB-1C or E-13) includes executives and managers of companies that have a qualifying relationship (subsidiary, affiliate, wholly-owned, branch, etc.) to a U.S. entity. To qualify, individuals must be (or have been) employed by the overseas company for at least one year within the last three years immediately preceding their transfer to the United States, in a managerial or executive capacity, and be coming to the United States to perform in a managerial or executive capacity.

EB-2: Second Preference

EB-2 is an immigrant visa preference category for professionals holding an advanced degree (i.e. any United States academic or professional degree or a foreign equivalent degree above that of a baccalaureate. A U.S. baccalaureate degree or a foreign equivalent degree, followed by 5 years of progressive experience in the field of specialization is also considered the equivalent of an advanced degree). Unlike the EB-1 category, EB-2 applicants must generally apply through the labor certification process. This means that before an I-140 immigrant visa petition can be filed on behalf of a foreign national, the U.S. employer must undergo a good faith recruitment effort, and the U.S. Department of Labor (DOL) must certify that there are no minimally qualified U.S. workers, who are willing and able to perform the job.

Typical applications filed under the EB-2 category include PERM labor certification applications and PERM “special handling” labor certification applications for college and university teachers.

However, there are two (2) types of EB-2 petitions, which are exempt from the labor certification process.

Schedule A

“Schedule A” is a class of occupations, for which DOL has determined that there are no sufficient qualified U.S. workers, who are able and willing to do the job. This is also known as “Schedule A Blanket Certification.” For these cases, DOL has delegated its authority to review labor certification applications to the U.S. Citizenship and Immigration Services (USCIS). Sponsoring employers in these cases submit the labor certification application form (ETA Form 9089), together with their I-140 immigrant visa petition, directly to USCIS, bypassing DOL altogether.

Schedule A, Group I includes physical therapists and professional nurses. While a higher degree and experience may not be necessary for nurses to obtain professional licenses, they must still meet the EB-2 degree requirement (i.e. advanced degree or bachelor’s degree plus 5 years of experience) in order to qualify under EB-2. Otherwise, they will still be classified as Schedule A, Group I, but their immigrant visa petition will fall under the EB-3 category.

Schedule A, Group II includes aliens of exceptional ability in the arts and sciences and aliens of exceptional ability in the performing arts.

National Interest Waiver (NIW)

National Interest Waiver (NIW) applies to foreign nationals with advanced degrees or exceptional ability whose employment is in the national interest. To qualify, the foreign national must show that it is in the national interest of the United States to waive the labor certification requirement. The NIW category also allows foreign nationals to file a self-sponsored petition.

EB-3: Third Preference

This category requires a labor certification from DOL before a a sponsoring employer can file an I-140 immigrant visa petition for the foreign national. EB-3 includes the following class of workers:

  1. Professionals with Bachelor’s degrees
  2. Individuals performing a job that requires at least two years of education, experience or training
  3. Other workers, including individuals performing jobs which require less than two years of education, training or experience.

EB-4: Fourth Preference

EB-4 is an immigrant visa category dedicated for special immigrants. USCIS lists the following special immigrant classifications, which are eligible for an immigrant visa under this category:

    • Religious Workers
    • Broadcasters
    • Iraqi/Afghan Translators
    • Iraqis Who Have Assisted the United States
    • International Organization Employees
    • Physicians
    • Armed Forces Members
    • Panama Canal Zone Employees
    • Retired NATO-6 employees
    • Spouses and Children of Deceased NATO-6 employees

With some exceptions, foreign nationals who qualify under this category must have an eligible sponsor. However, a labor certification is not required before an I-360 immigrant visa petition can be filed.

Out of all the special immigrant classifications on this list, the religious workers classification is probably the most popular. Foreign nationals who wish to qualify as a special immigrant religious worker must either be:

  1. Special immigrant entering the United States solely for the purpose of carrying on the vocation of a minister; or,
  2. Special immigrant religious worker within a religious vocation or occupation engaged in either a professional or non-professional capacity.

They must also prove that, for at least two years immediately before filing the I-360 immigrant petition, they have been a member of the religious denomination having a bona fide nonprofit, religious organization in the United States, and have been continuously performing the qualifying religious vocation or occupation.

Just like the other employment-based preference categories, immigrating to the United States as a religious worker requires full-time employment and corresponding compensation. Furthermore, the sponsoring religious organization must be able to prove, among other things, its tax-exempt status as religious organization; or, in case of an affiliate organization, they must be able to show proof of the organization’s religious nature and tax exemption status, and attest to a religious denomination certification.

EB-5: Fifth Preference

EB-5 is an immigrant visa program for prospective immigrants who make large investments into a business run by the United States. There are 10,000 immigrant visas allocated for individuals who invest $1 million and create at least ten new jobs.  Under the EB-5 program, the amount can be reduced to $500,000 if the business is located in a rural area, or in an urban area with high unemployment. The most common issue with these cases is showing the creation of ten full-time jobs, which may not include independent contractors and immediate family members.

The popular Immigrant Investor Pilot Program (regional centers) allows individuals to make a $500,000 investment in pre-approved designated regional centers. The Pilot Program does not require the investor to directly hire ten qualified workers, but allows the calculation of employees to include individuals who provide services or a job that has been created indirectly by the investment in the new commercial enterprise.

Needless to say, the idea behind the EB-5 program is to create jobs for American workers, so there is no requirement for employer sponsorhip or labor certification from DOL. Out of all the immigrant visa preference categories, EB-5 is the only one that grants 2-year conditional resident status. EB-5 investors must file a separate petition to remove the conditional nature of their residency within 90 days before their conditional green card expires.

 

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