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Employment
Based Immigration Visas
There are five
categories of Employment Based Immigration Visas:
Employment
Based First Preference (EB1) or Priority
Workers (28.6% of annual cap)
A.
Extraordinary Ability
Employer
and Labor Certification not required
The general
requirement is that the individual should have risen to the "top of
her/his field of endeavor."
(i) as
demonstrated by national or international acclaim
(ii) which should
be recognized through extensive documentation and
(iii) the alien
should continue the work in the same field and
(iv) would
substantially benefit the U.S. prospectively.
The definitions,
being broad, could apply to a number of situations. The general requirement is
that the individual should have risen to the "top of her/his field of
endeavor."
The law states
that receipt of the Nobel Prize or at least three types of evidence from the
list below are needed to satisfy the criteria. Note that the submitted
documentation must relate to and support the specific case presented to the
USCIS.
1. Documentation
of the alien's receipt of lesser nationally or internationally recognized
prizes or awards for excellence in the field of endeavor.
2. Documentation
of the alien's membership to 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.
3. Evidence of
the 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.
4. 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. Such evidence shall include the title, date, and author of the
material, and any necessary translation.
5. Evidence of
the alien's authorship of scholarly articles in the field, in professional or
major trade publications or other major media.
6. Evidence of
the alien's original scientific, scholarly, artistic, athletic, or
business-related contributions of major significance in the field.
7. Evidence of
the display of the alien's work in the field at artistic exhibitions or
showcases.
8. Evidence of
commercial successes in the performing arts, as shown by box office receipts or
record, cassette, compact disc, or video / DVD sales.
9. Evidence that
the alien has commanded a high salary or other significantly high remuneration
for services, in relation to others in the field.
10. Evidence that
the alien has performed in a leading or critical role for organizations or
establishments that have a distinguished reputation.
An advantage of this category is that an employer is not required to sponsor
this Petition.
B.
Outstanding Professor or Researcher
Employer
required but Labor Certification not required
This category is
for "outstanding" academicians - professors and researchers who can
establish a high level / degree of achievement in their fields. This category
is available to individuals who can prove that they are "recognized
internationally as outstanding in a specific academic area," have at least
3 years of teaching or research experience in their field of endeavor, and intend
to teach or carry out research in that particular field in the United States.
The individual
must have an offer of employment in his/her field. Employment from an
accredited university must be for a tenure-track position. The employment can
also be for a permanent research position with a private employer who has at
least three full-time researchers and has documented accomplishments in that
field.
In order to
qualify for this visa, it is necessary to produce at least two of the
following:
1. Published
material in professional publications written by others about the alien's work
in the academic field. Such material shall include the title, date, and author
of the material, and any necessary translation.
2. Documentation
of the alien's receipt of major prizes or awards for outstanding achievement in
the academic field.
3. Documentation
of the alien's membership in associations in the academic field, which require
outstanding achievements of their members.
4. Evidence of
the alien's original scientific or scholarly research contributions to the
academic field.
5. Evidence of
the alien's authorship of scholarly books or articles (in scholarly journals
with international circulation) in the academic field.
6. Evidence of
the alien's participation, either individually or on a panel, as a judge of the
work of others in the same or allied academic field.
In addition to
the above, the petition to the USCIS must be accompanied by an offer of
employment for the applicant to work in his or her field from either an
institution of higher education or a company with a research department /
facility.
As stated above,
if employment is from an academic institution, it needs to be a tenure or
tenure-track position. If from a company, the employer should have in its
employ at least three full-time researchers and have documented achievements by
the company or its research personnel.
C.
Multinational Executive or Manager
Employer
required but Labor Certification not required
This immigrant
visa category is designed to facilitate international transfer of executive or
managerial personnel within multinational companies. The transfers can be
between different branches of the same company, or between different companies
with one of the following types of relationship: (1) parent-subsidiary;
(2) home office-branch office; and (3) affiliate-affiliate.
In this category,
the employee must have worked in either a managerial or executive capacity, for
the related company abroad, for at least a one-year period in the three years
preceding the transfer.
The employee
should be coming to the United States company to function in an executive or
managerial capacity. The employee may already be in the United States in a
nonimmigrant visa status which normally is the L1A visa.
The U.S. company
must show that it is either the parent, subsidiary, affiliate, or branch office
of the company abroad and the relationship between the U.S. and overseas
operations must be documented and proved. The U.S. company must have been
formed for at least one year.
The Employment
Based Second Preference (EB2) (28.6% of annual cap and unused EB-1)
Employer
& Labor Certification required unless in the National Interest Waiver
This immigrant
visa category is for "members of the professions holding advanced
degrees," and "aliens of exceptional ability."
A. Members
of the Professions Holding Advanced Degrees
Employer and Labor Certification Required
The USCIS defines an advanced degree as a professional or
academic degree, given by a U.S. institution, beyond that of a baccalaureate. A
foreign degree from an overseas institution may also be acceptable if the USCIS
determines it to be equivalent to a U.S. degree.
After the baccalaureate degree five years of employment experience, involving
incremental responsibility in the profession, may be used in place of the
advanced degree to qualify for the second preference category. This is provided
the position requires the advanced degree.
In this EB2 category, the applicant must have a job offer in the profession for
which s/he is academically prepared. The employer must obtain appropriate
"labor certification (LC)" from the U.S. Department of Labor.
The LC must indicate that the position offered is one that requires the
advanced degree to perform the job. If the profession as a rule requires a
doctoral degree, the job offer and the credentials of the applicant must
indicate / reflect it.
B. Aliens
of Exceptional Ability in the Sciences, Arts, or Business
Employer
and Labor Certification Required
The USCIS has specified "exceptional ability" in the sciences, arts,
or business as "a degree of expertise significantly above that ordinarily
encountered." To prove such exceptional ability, USCIS regulations propose
submitting at least three of these kinds of documentation:
A license to practice the profession or certification for a particular
profession or occupation
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 s/he is being sought
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 that the alien has commanded a salary, or other remuneration for
services, which demonstrates exceptional ability
Evidence of recognition for achievements and significant contributions to the
industry or field by peers, governmental entities, or professional or business
organizations.
Evidence of membership in professional associations. Here, the applicant must
have a job offer in the profession for which s/he is academically prepared.
The employer must
obtain a permanent labor certification (LC) from the Department of Labor.
C.
National Interest Waiver
Employer
and Labor Certification not Required
The national interest waiver (NIW) involves a standard
higher than that required to establish a prospective national benefit. Click Here for Details.
The
Employment Based Third Preference (EB3) (28.6% annual cap and unused EB-1 and
EB-2)
Employer and Labor Certification required
This is for individuals who are "skilled workers,
professionals, and other workers."
There must be a job offer by a United States employer for skilled workers and
professionals. The job must be in the occupation for which s/he has received
training or education, or a closely related occupation. The employer must
obtain a labor certification (LC) from the U.S. Department of Labor.
The LC must indicate that the position offered requires the education,
training, or experience of the prospective employee. After the LC is approved,
the employer may file an employment-based immigrant petition on behalf of the
prospective employee.
The category of "skilled," "unskilled," or
"professional" is determined by the type of job and the background of
the prospective employee.
Skilled Workers
The applicant must show capability in an occupation that requires at least
two years of training or experience in order to qualify for the
third-preference category under "skilled worker."
Professionals
Applicants must demonstrate the accomplishment of at least a U.S. baccalaureate
degree (or its foreign equivalent) to be classified as "professional"
for the third-preference category. The degree should be a minimum requirement
in order to enter the profession. Qualifying jobs for this are similar to the specialty
occupation for H-1B.
Other Workers
The other worker category is for occupations that require less than two
years training / experience. The quota for this category is severely backlogged
due to large numbers of applicants and low numbers of visas issued each fiscal
year.
The
Employment Based Fourth Preference (EB4) (7.1% of annual cap)
Employer required and Labor Certification not required
This preference is for special immigrants, as explained
here:
Immigrants in this category include religious ministers, certain long-time
employees of the U.S. government (or of certain international organization)
employed abroad, and some physicians who have resided in the U.S. for a number
of years, court dependants, etc.
The
Employment-Based Fifth Preference (EB5) INVESTOR VISA (7.1% of annual cap)
Labor Certification not required
This visa category is designed for those who invest
one million dollars in a new enterprise that employs ten U.S. workers
(exclusive of the immigrant, his/her spouse, and any sons and daughters) or
$500,000, if the investment is in certain rural areas or an area of
unemployment of at least 150 percent of the national average. Investor visas
for those investing in rural or high unemployment areas are limited to a
maximum of 3,000 every year.
EB5 investors obtain permanent resident status on a conditional basis for two
years and then must apply to remove the condition.
Numerical Limitations for Limited
Employment-Based Immigrants
The annual cap for employment based immigration is 140,000. Whenever there are more qualified applicants for a category than there are
available numbers, the category will be considered oversubscribed, and
immigrant visas will be issued in the chronological order in which the
petitions were filed until the numerical limit for the category is reached. The
filing date of a petition or labor certificate becomes the applicant's priority
date. Immigrant visas cannot be issued until an applicant's priority date is
reached. In certain heavily oversubscribed categories, there may be a waiting
period of several years before a priority date is reached. Check the Visa Bulletin for the latest
priority dates.
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