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Employment Based Immigration (EB1 – EB5)

Understandably, the United States draws the smartest and most talented individuals from all over the world.  This diverse talent pool makes the United States amongst the most technologically competitive country in the world.  United States businesses and teaching institutions tap this global talent pool for professional talent in fields ranging from Information Technology (IT) specialists, accountants, and market research analysts, to professors and scientists.  A variety of different work visa statuses exist depending upon the type of position offered and the background and experience of the applicant. An employer requiring a more permanent situation with their employee should pursue a green card which establishes lawful permanent residence for the applicant employee, and can be processed while the employee is still under H1B status.

Labor Certification

Labor Certification (LC) is the first step in nearly all employment-based application. The goal of the LC process is to determine that the insufficiency of U.S. workers in the local area justifies the hiring of a foreign worker for a particular position. The local labor market is tested through advertising and other competitive recruitment. Under the PERM process, recruitment is conducted prior to filing to test the market.   See the following link to the Department of Labor for an overview of the Permanent Labor Certification (www.foreignlaborcert.doleta.gov/perm.cfm).

Employment-Based Immigration: EB1 (Employer Sponsorship and Labor Certification Not Required)

You may be eligible for an employment-based, first-preference visa if you have an extraordinary ability, are an outstanding professor or researcher, or are a multinational executive or manager. Each occupational category has certain requirements that must be met:

Extraordinary Ability – You must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Your achievements must be recognized in your field through extensive documentation. No offer of employment is required.

Criteria for Demonstrating Extraordinary Ability
You must meet 3 out of the 10 listed criteria below to prove extraordinary ability in your 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  – You must demonstrate international recognition for your outstanding achievements in a particular academic field. You must have at least 3 years experience in teaching or research in that academic area. You must be entering the United States in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education.

Multinational Manager – You must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation and you must be seeking to enter the United States to continue service to that firm or organization. Your employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.

Employment-Based Immigration: Second Preference (EB2)

Individuals holding an advanced degree or its equivalent, or a foreign national who has exceptional ability may be eligible for EB under the following occupational subcategories:

1. Advanced Degree: The job you apply for must require an advanced degree and you must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field).
2. Exceptional Ability: You must be able to show exceptional ability in the sciences, arts, or business.  “Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business”
3. National Interest Waiver: Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States.  Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the national.  Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.

For sub-categories one and two (exceptional ability or national interest waiver), you must meet 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.

Note: 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 for an EB-2 visa, your employer must file a Form I-140, Petition for Alien Worker. For more information about filing, see the “Forms” link to the right.

Employment Based Third Preference (EB3) – (Employer Sponsorship and Labor Certification Required)

You may be eligible for this immigrant visa preference category if you are a skilled worker, professional, or other worker.  A job offer by a United States employer must exist for skilled workers and professionals to file a petition under this category. Obviously, the job must be in the occupation for which they have received training or education, or a closely related occupation. The employer must obtain a labor certification (LC) from the U.S. Department of Labor.

• “Skilled workers” are persons whose job requires a minimum of 2 years training or work experience, not of a temporary or seasonal nature
• “Professionals” are persons whose job requires at least a U.S. baccalaureate degree or a foreign equivalent and are a member of the professions
• The “other workers” subcategory is for persons performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature.

The Employment Based Fourth Preference (EB4)

You may be eligible for an employment-based, fourth preference visa if you are a special immigrant. The following special immigrants are eligible for the fourth preference visa:

• 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

Petitioning for an Employment-Based Fourth Preference Immigrant

To petition for an employment-based fourth preference immigrant, your employer must file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. However, there are certain situations where you, the employee, may self-petition on your own behalf. Please review the form instructions to see if you are eligible to self petition and what required supporting evidence needs to be included.