IMMIGRATION

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Employment Based Visas
There are a number of immigrant and non-immigrant visas than can be obtained through employment in the United States.

Immigrant Visas:

The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas which are divided into five preference categories. They may require a labor certification from the U.S. Department of Labor (DOL), and the filing of a petition with the Citizenship and Immigration Services (CIS).

There are five employment-based immigrant visa categories:

1) First Preference (EB1)or Priority Workers
     Extra Ordinary Ability
     Outstanding Professor or Researcher
     Multinational Executive or Manager
2) Second Preference (EB2)
3) Third Preference (EB3)
     Skilled Worker
     Professional
     Other Workers
4) Fourth Preference (EB4)
5) Fifth Preference (EB5)

Employment-Based First Preference (EB1) or Priority Workers:

Extraordinary Ability: The biggest advantage of this category is that no labor certification or employer is 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 applicant is required to file at least three types of evidence from a list stated in the regulations to satisfy the criteria.

An advantage of this category is that an employer is not required to sponsor this Petition.

Outstanding Professor or Researcher: Under this category no labor certification is required. However, an employer (sponsor) is required.

This category is for "outstanding" academicians - professors and researchers who can establish a high level / degree of achievement in their fields.

The E12 immigrant 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 an employer who has at least three full-time researchers and has documented accomplishments in that field.

In order to qualify for the E12, it is necessary to produce at least two documents listed in regulations. The petition to the INS must be also 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.

Multinational Executive or Manager: Under this category only an employer is required and no labor certification is required.

This immigrant visa category is designed to facilitate international transfer of executive or managerial personnel within multinational companies.

The E13 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 non-immigrant visa status such as the L-1A visa or one of the E visa classifications.

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 Employment Based Second Preference (EB2): Unless there is a national interest waiver, both employer as well as a labor certification are required.

This immigrant visa category is for "members of the professions holding advanced degrees," and "aliens of exceptional ability."

Members of the Professions Holding Advanced Degrees
Employer and Labor Certification Required

INS 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 INS 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.

Aliens of Exceptional Ability in the Sciences, Arts, or Business Employer and Labor Certification Required

INS 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, the INS regulations propose submitting at least three documents from a list provided in the regulations.

The employer must obtain a permanent labor certification (LC) from the Department of Labor. The LC must indicate that the position offered requires the advanced degree to perform the job duties.

National Interest Waiver: A national interest waiver may be granted if the work of the individual is in the national interest of the United States.

The Employment Based Third Preference (EB3): Both labor certification and employer are needed.

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 he/she 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 E32 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): No labor certification is required under this category. However, an employer is required.

This preference is for "special immigrants" listed below:

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
No labor certification is required.

This is a visa category is designed for those who invest one million dollars in a new enterprise that employs 10 U.S. workers (exclusive of the immigrant, his/her spouse and sons and daughters) or $500,000 if the investment is in certain rural areas or an area of unemployment of at least 150% 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.

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