EMPLOYMENT-BASED IMMIGRANT VISAS
1. Employment-Based Immigrant Visas Categories
There are five employment-based visa categories available to aliens who are seeing to immigrate based on their job skills. These categories are as follows:
Persons with extraordinary ability in the sciences, arts, education, business, or athletics. Extraordinary ability is defined as a level of expertise indicating that the individual is one of that small percentage who has risen to the very top of the field of endeavor, as demonstrated by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall consist of either a one-time major, internationally recognized award or by evidence satisfying at least three of the following criteria:
• Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
• Membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
• Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought (include the title, date, and author of the material, and any necessary translation);
• Alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
• Alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
• Alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
• Display of alien’s work in the field at artistic exhibitions or showcases;
• Performance in a leading or critical role for organizations or establishments that have a distinguished reputation;
• Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
• Commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
Outstanding professors and researchers with demonstrated international recognition for his or her outstanding achievements in a particular academic field, evidenced by at least two of the following:
• Evidence of receipt of major prizes or awards for outstanding achievement;
• Evidence of membership in associations that require their members to demonstrate outstanding achievement;
• Evidence of published material in professional publications written by others about the alien’s work in the academic field;
• Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field;
• Evidence of original scientific or scholarly research contributions in the field; or
• Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.
The regulations further require the applicant to have at least three years of experience in teaching or research in the academic field. The term “academic field” means a body of specialized knowledge offered for study at an accredited U.S. university or institution of higher education.
Applicants in this category must be coming to the U.S. to pursue tenure, tenure track teaching, or a comparable research position at a university or other institution of higher education.An offer of employment from a prospective United States employer is required.
Multinational managers or executives who have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. If the applicant is outside the United States, the three-year period refers to the three years immediately preceding the filing of the petition. If the applicant is already in the United States working for the U.S. employer, the three-year period refers to the three years preceding entry as a nonimmigrant.The applicant’s employment outside of the U.S. must have been in a managerial or executive capacity, and the applicant must be coming to work in a managerial or executive capacity.
B. Employment Second Preference (EB-2) Professionals Holding advanced Degree and Persons of Exceptional Ability
Professionals holding an advanced degree who have attained a U.S. academic or professional degree or a foreign equivalent degree above that of a baccalaureate, or a U.S. baccalaureate degree or a foreign equivalent degree followed by at least five years progressive experience in the specialty.
Persons with exceptional ability in the sciences, arts, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business, as demonstrated by at least three of the following:
• An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
• Evidence in the form of letter(s) from current or former 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 to practice the profession or certification for a particular profession or occupation;
• Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
• Evidence of membership in professional associations; or
• Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
C. Employment Third Preference (EB-3) Skilled Workers, Professionals, and Unskilled Workers (Other Workers)
Skilled workers are persons capable of filling positions that require a minimum of two years training or work experience and which are not temporary or seasonal in nature.
Professionals are members of the professions who hold at least a baccalaureate degree from a U.S. university or college or a foreign equivalent degree. To qualify for this classification, the U.S. employer must show that the minimum of a baccalaureate degree is required for entry into the proffered job.
Unskilled workers (Other workers) are persons capable of filling positions that require less than two years training or experience and which are not temporary or seasonal in nature. Possession of the required training or experience must be evidenced by training or employment certificates describing the training received or experience of the alien.
D. Employment Fourth Preference (EB-4) Certain Special Immigrants
There are many subgroups within this category:
a. Broadcasters in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization
b. Ministers of Religion
c. Certain Employees or Former Employees of the U.S. Government Abroad
d. Certain Former Employees of the Panama Canal Company or Canal Zone Government
e. Certain Former Employees of the U.S. Government in the Panama Canal Zone
f. Certain Former Employees of the Panama Canal Company or Canal Zone Government on April 1, 1979
g. Iraqi and Afghan interpreters/translators who have worked directly with the United States armed forces or under Chief of Mission authority as a translator/interpreter for a period of at least 12 months and meet requirements. This classification has an annual numeric limitation of 50 visas.
h. Iraqi and Afghan nationals who have provided faithful and valuable service while employed by or on behalf of the U.S. government in Iraq for not less than one year after March 20th, 2003 or in Afghanistan for not less than one year after October 7th, 2001, and have experienced an ongoing serious threat as a consequence of that employment.
i. Certain Foreign Medical Graduates (Adjustments Only)
j. Certain Retired International Organization Employees
k. Certain Unmarried Sons and Daughters of International Organization Employees
l. Certain Surviving Spouses of deceased International Organization Employees
m. Special Immigrant Juveniles (no family member derivatives; Adjustments Only)
n. Persons Recruited Outside of the United States Who Have Served or are Enlisted to Serve in the U.S. Armed Forces
o. Certain retired NATO-6 civilians
p. Certain Unmarried Sons and Daughters of NATO-6 civilians
q. Certain Surviving Spouses of deceased NATO-6 civilian employees
r. Persons who are beneficiaries of petitions or labor certification applications filed prior to September 11, 2001, if the petition or application was rendered void due to a terrorist act on September 11, 2001
s. Certain Religious Workers
E. Employment Fifth Preference (EB-5) Immigrant Investors
This preference is set aside for immigrant investors who invest a specific minimum amount of capital in a new commercial enterprise which will create employment for a specific minimum number of US workers. No “job offer” is needed because the qualification is based on the amount of investment and not on whether a job is offered to the alien. Labor certification is not needed.
The following are the general requirements to qualify for EB-5 classification:
1. Alien needs to “invest” in a new commercial enterprise. A “new” enterprise means a company that is formed after November 29, 1990.
2. Invests or is in the process of investing capital of $1 million dollars. Investment could be $500,000 dollars if it’s in a targeted employment area (i.e., rural area of less than 20,000 populations, or an area which has experienced high unemployment of at least 150% of the national average.)
-Investment can be cash, equipment, inventory, other tangible prop, cash equivalents, and indebtedness secured by assets owned by the entrepreneur, provided the entrepreneur is personally liable and assets of new enterprise are not used to secure any indebtedness.
-All capitals are in US dollars and at fair market value.
3. Aliens must show source of funds and that they are legitimate.
4. Create at least 10 full-time jobs to qualifying US citizens or immigrant workers (excluding alien and his family) within the 2- year conditional residence period. Independent contractors hired by the entrepreneur do not count. Full-time employment is at least 35 working hours per week.
Conditional Status for EB-5 Immigrants
When the Form I-526 petition for EB-5 classification is granted, alien becomes a conditional resident for two years following the adjustment application or admission under an immigrant visa. To remove the conditions, alien must file Form I-829 petition within the 90-day period immediately preceding the second anniversary of his or her admission as a conditional resident. If I-829 is not filed on time, status is automatically terminated.
2. Employment- Based Visa Number Limitations
Approximately 140,000 immigrant visas are available each fiscal year (starting October 1 and ending September 30) to qualified aliens (and their spouses and children) who seek to live permanently in the United States based on their job skills. Applicants under EB-1, EB-2 and EB-3 receive 28.6 percent each of the yearly worldwide visa allocation, while EB-4 and EB-5 receive 7.1 percent each. The law also provides for per-country limitation set at 7% and dependent are limitation set at 2% of the total annual family-sponsored (226,000) and employment-based (140,000) preference limits.
For employment-based immigrant visas, visa numbers are issued to eligible immigrants in the order in which a labor certification or immigrant petition (if labor certification is not required) has been filed. Due to the numerical limitations, exceeding demands for visa numbers cause a backlog in the issuance of visa numbers. Currently, EB-3 categories are oversubscribed to the extent that applicants worldwide wait for several years before they are able to apply for immigrant visa, with India-born applicants experiencing the longest waiting time followed by applicants born in Mainland China. EB-2 categories always been current for applicants worldwide, except Mainland China and India; although the rising demand for EB-2 categories have also resulted in worldwide visa backlog at some point and may still happen again from time to time. All other categories are current, with visa numbers immediately available to the applicants.
3. Labor Certification
Some of the employment-based immigrant visa categories enumerated above require the prospective U.S. employer to first obtain an approved labor certification from the Department of Labor (DOL). A labor certification allows an employer to work permanently in the United States. By approving the labor certification, the DOL certifies to the U.S. Citizenship & Immigration Services (USCIS) that there not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that the hiring of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The application for labor certification is made on ETA Form 9089. Prior to filing ETA Form 9089, the petitioner must obtain a prevailing wage determination from the National Prevailing Wage Center. The employer must also comply with the pre-filing recruitment steps. When the occupation involved is a professional occupation, which normally requires a bachelor’s or higher degree, the employer must comply with the recruitment steps prescribed under 20 CFR §656.17(e)(1). The employer must advertise the job opportunity with the State job bank for at least 30 days and in a newspaper of general circulation for at least two Sundays. Additionally, the employer must conduct at least three of 10 supplemental advertising forms specified in the regulations. For all other occupations not normally requiring a bachelor’s or higher degree, the employer may but need not conduct three supplemental advertising forms. However, under 20 CFR §656.17(e)(1), the employer must still conduct the State job bank and two Sundays newspaper advertising.
EB-1, EB-4 and EB-5 categories do not require labor certification. Petitions under EB-2, except those seeking national interest waiver, and EB-3 categories must be accompanied by duly approved labor certification. National interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the national.
The DOL processes all labor certification applications, with the exception of Schedule A and sheepherder applications filed under 20 CFR §656.16. The date the labor certification application is received by the DOL is used by the USCIS as the priority date. After approval, the labor certification must be submitted to the USCIS with a Form I-140, Immigrant Petition for Alien Worker, within 180 days from date of certification.
For Schedule A and sheepherder applications, the ETA Form 9089 is filed, in duplicate, with the appropriate USCIS service center. Schedule A is comprised of the following occupations, which the DOL has determined there are not sufficient U.S. workers who are able, willing, qualified and available and the employment of aliens in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed.
The occupations listed under Schedule A include:
Group I
1. Physical Therapists – who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy; and
2. Professional Nurses – the alien (i) has a Commission on Graduates in Foreign Nursing Schools (CGFNS) Certificate, (ii) the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) exam, or (iii) the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.
Group II
1. Sciences or arts (except performing arts) – Aliens (except for aliens in the performing arts) of exceptional ability in the sciences or arts including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States. For purposes of this group, the term “science or art” means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill. An alien, however, need not have studied at a college or university in order to qualify for the Group II occupation.
2. Performing arts – Aliens of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.
4. Petition Requirements
Petitions under EB-1, EB-2, and EB-3 categories must be filed on Form I-140, Immigrant Petition for Alien Worker. In general, the Form I-140 petition must be supported by an employment offer from a U.S. employer and filed by the prospective U.S. employer. Applicants seeking classification under EB-1 Extraordinary Ability or EB-2 Exceptional Ability with national interest waiver application need not provide an employment offer and may do self-petition.
Petitions under EB-4 category generally must be made on Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. For petitions under EB-5 category, the immigrant investor must file the petition on Form I-526, Immigrant Petition by Alien Entrepreneur.
Petitions requiring an offer of employment must show that the U.S. employer has the ability to pay the prevailing wage for the proffered job as determined by the National Prevailing Wage Center. The U.S. employer must demonstrate this ability at the time the priority date is set (i.e., date of filing of labor certification or, if labor certification is not required, date of filing of the petition) and continuing until the beneficiary obtains lawful permanent residence. To demonstrate this ability, the employer must show that it has a net income or net current assets at least equal to the proffered wage, as evidenced by copies of annual reports, federal tax returns or audited financial statements. If the petitioning employer employs at least 100 workers, a statement of ability to pay from a financial officer of the employer will suffice to meet this requirement.