Employment-Based Immigration

Green Cards Through Employment

Many foreign nationals come to the U.S. on a temporary basis with no intent to remain permanently. Some are brought by companies for a specific job task by employers seeking to fill specific needs. Others come for pleasure or educational opportunities.

Temporary visitors are issued nonimmigrant visas typically within weeks of the application, unlike permanent resident visa applications that could take years. The visas are valid for a certain period of time as determined by USCIS or the U.S. Embassy. Some of the nonimmigrant visas can allow a person to live and reside in the United States for a lengthy or indefinte period of time.

Whenever an alien applies for a nonimmigrant visa at an Embassy or in the United States with Bureau of Citizenship and Immigration Services there is always a rebuttal presumption that the alien has intent to immigrate permanently to the United States. If the Consular Post or the USCIS believes that the alien has an intent to immigrate to the United States permanently, they will often not issue a nonimmigrant visa.

Green Cards Through Employment

1) Employment First Preference (EB-1):
Aliens with Extraordinary Ability, Outstanding Professors and Researchers, Multi-National Corporate Executives or Managers

A) Aliens with Extraordinary Abilities Defined:
Persons of extraordinary ability are those who can show extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. Applicants do not need to have a specific job offer as long as they have evidence that they are entering the U.S. to continue work in the field in which they have extraordinary ability. Such applicants do not need an employer to submit a petition to USCIS on their behalf since they are permitted to "self-petition". A labor certification, see below, is not necessary for persons in this category. 

This category is for "that small percentage who have risen to the very top of their field of endeavor." Examples of a major internationally recognized award is the Nobel Prize. Other awards may also qualify if the award is in the same class as a Nobel Prize.

Since few workers receive this type of award, USCIS will accept the alternative evidence outlined below as long as at least three are satisfied. Other comparable evidence may be submitted if the following criteria do not apply:

• Receipt of a lesser nationally or internationally recognized prize or award for excellence;
• Membership in associations in the field that demands outstanding achievement of their members;
• Published material about the alien;
• Evidence that the alien is a judge of the works of others in the field;
• Evidence of the alien's original contribution of major significance to the field;
• Authorship of scholarly articles;
• Display of the alien's work at artistic exhibitions or showcases;
• Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
• Evidence that the alien commands a high renumeration in relation to others in the field; or
• Evidence of commercial success in the performing arts.

B) Outstanding Professors and Researchers Defined:
Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally in a specific academic field fit this classification. No labor certification, see below,  is required, but the prospective employer must provide a job offer and file a petition with the USCIS. The employer need not be a university or educational institution. The employer can be a private company as long as that company employs at least three full time researchers. The private employer must also have documented accomplishments in the academic field for which the position is offered. The statute does not require the possession of a doctorate.

The outstanding professor or researcher must satisfy at least two of the following criteria:

• receipt of major prizes or awards;
• membership in associations that require outstanding achievements;
• published material in professional journals written by others about the alien¿s work;
• participation as a judge in the works of others in the same or an allied field;
• original scientific or scholarly research contributions to the field; or
• authorship of scholarly books or articles in scholarly journals with international circulation in the field.

C) Certain Multinational Executives and ManagersDefined:
This category provides for the easy transfer of international business executives. A multinational executive or manager is one who has been employed outside the U.S. in a managerial or executive capacity for at least one of the three years immediately preceding the filing of the petition, or, in the case of a foreign worker present in the U.S., one of the three years preceding entry into the U.S. as a nonimmigrant.

The past employment must have been with the same employer, an affiliate, or a subsidiary of the employer and in a managerial or executive capacity. The foreign worker must be coming to the U.S. to work in a managerial or executive capacity for the same company that is a U.S. employer and has been in business for one year or more. No labor certification, see below, is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS.
The definition of a manager is as follows:

• manages the organization or a department;
• supervises and controls the work of other supervisory, professional, or managerial employees or manages an essential function within the organization, or a department or subdivision of the organization;

if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

The definition of executive capacity is as follows:

• directs the management of the organization or a major component or function of the organization;
• establishes the goals and policies of the organization, component, or function;
• exercises wide latitude in discretionary decision making; and
• receives only general supervision or direction from high level executives, the board of directors or stockholders of the organization.

This category has substantial documentation requirements. Please contact us for more information.

2) Employment Second Preference (EB-2):
Aliens Who are Members Of The Professions Holding Advanced Degrees or Aliens of Execptional Ability

This category is for members of a profession holding advanced degrees or their equivalent, or who, because of their exceptional ability in the sciences, arts or business will substantially benefit prospectively the national, cultural, or educational interests or welfare of the United States, and whose services are sought by an employer in the United States. In general applicants must have a job offer and a labor certification approved by the U.S. Department of Labor ("DOL"), see below. Exceptional ability applicants in the sciences, arts, or business, may apply to waive the certification approved by the U.S. Department of Labor ("DOL"), see below. Exceptional ability applicants in the sciences, arts, or business, may apply to wiave the requirement of a job offer if such a waiver would be in the national interest.

Members of the Professions Holding Advanced Degrees Defined:
Professionals are those individuals holding advanced degree above a baccalaureate degree, i..e. a Master's Degree or its equivalent, or a Baccalaureate Degree and at least five years progressive experience in the profession.

Aliens of Exceptional Ability Defined:
Persons may show exceptional ability in the arts, sciences, athletics or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field and this ability will substantially benefit the national economy, culture, educational interests or the welfare of the U.S.

This is established by showing at least three of the following six criteria:

• an official academic record showing a degree, diploma, certificate or similar award from a college, university, school, or other institution of learning relating to the area of the alien's exceptional ability;
• at least ten years of full-time experience in the occupation documented by letters from current or past employers;
• a license to practice the profession or certification from the particular profession or occupation;
• evidence that the alien has earned a salary or other renumeration for the services demonstrating 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; and
• other comparable evidence is also acceptable.

3) Employment Third Preference (EB-3):
Skilled Workers, Professionals, And Other Unskilled Workers

A) Skilled Workers Defined:
Skilled workers are those in positions that require a minimum of two years of training or experience. Relevant post-secondary education counts as training. Note that simply because the alien possesses two years of experience does not make that a skilled position.

B) Professionals Defined:
Professionals must possess a baccalaureate degree or a foreign degree equivalent and the petitioner must demonstrate that such a degree is the normal requirement for entry into the occupation.

C) Other Workers Defined:
Other workers are those persons capable of filling positions requiring less than two years' training or experience. The current backlog for this category is approximately 6 years. Other workers include non-temporary or seasonal unskilled laborers.There are several requirements that must be met in this category:

• The alien must be offered a full time, permanent position;
• The Department of Labor must certify (approve a labor certification, see below) that there are no available U.S. workers to fill the position;
• The alien must meet the minimum requirements for the position offered and the employer must demonstrate an ability to pay the salary offered

4) Employment Fourth Preference (EB-4):
Special Immigrants (Religious Workers)

There are six subgroups in this preference cateogory:

• Religious workers coming to carry on the vocation of a minister of religion, or to work in a professional capacity in a religious vocation, or to work for a tax-exempt organization affiliated with a religious denomination;
• Certain overseas employees of the U.S. Government;
• Former employees of the Panama Canal Company;
• Retired employees of international organizations;
• Certain dependents of international organization employees; and
• Certain members of the U.S. Armed Forces.

This category has substantial documentation requirements. Please contact us for more information.

5) Employment Fifth Preference Investor Visa (EB-5):

To qualify, an alien must invest $500,000 in a targeted employment area (rural areas or areas experiencing high unemployment of at least 150% of the national average) or $1,000,000, anywhere else. The new development must create at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.

1st: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbersnot required for fourth and fifth preferences.

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

3rd: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers".

4th: Certain Special Immigrants: 7.1% of the worldwide level.

5th: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

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