Employment Based Immigration

Individuals could become permanent residents through a job or offer of employment. Most categories require a certification from the U.S. Department of Labor (DOL) to show that there are not enough U.S. workers who are able, willing, qualified, and available in the intended area of employment where the immigrant is to be employed and that no American workers are displaced by foreign workers. In other cases, highly skilled workers, those with extraordinary ability in certain professions, and investors/entrepreneurs are given priority to immigrate through several immigrant categories.

In some cases, Green cards may be available through investment (to investors/entrepreneurs who are making an investment) in an enterprise that creates new U.S. jobs.

There are categories where some individuals could self-petition. It is available for either “Aliens of Extraordinary Ability” or certain individuals applying for a National Interest Waiver.

There are special categories that may allow individuals (Afghan/Iraqi Translator, Broadcaster, International Organization Employee, Iraqi Who Assisted the U.S. Government, NATO-6 Nonimmigrant, Panama Canal Employee, Physician National Interest Waiver, and Religious Worker) to get a green card based on a past or current job. For these categories, it requires filing Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

If individual is in United States, they may be eligible to adjust their status inside the United States to that of a permanent resident. If they are not eligible to adjust status, the immigrant petition will be sent to the U.S. consulate abroad to complete the visa process.

EB1 – First Preference Category

An alien individual may be eligible for an employment-based, first-preference visa category if he or she is an extraordinary ability, an outstanding professor or researcher, or a multinational executive or manager. Each of these occupational categories has their own requirements to be fulfilled. 

Extraordinary Ability Alien

The alien individual must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. His or her achievements must be recognized in their field through extensive documentation. No offer of employment is required and no labor certification is required to be filed with the Department of Labor (DOL). The alien individual must meet at least three of the following 10 listed criteria below to prove extraordinary ability in their field:
  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
  • Evidence of membership in associations in the field which demand outstanding achievement of their members
  • Evidence of published material about alien individual in professional or major trade publications or other major media 
  • Evidence of judging the work of others, either individually or on a panel
  • Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Evidence of authorship of scholarly articles in professional or major trade publications or other major media 
  • Evidence of work being displayed at artistic exhibitions or showcases 
  • Evidence of performance of a leading or critical role in distinguished organizations 
  • Evidence that alien individual commands a high salary or other significantly high remuneration in relation to others in the field
  • Evidence of commercial successes in the performing arts.

Outstanding Professors/Researchers

The alien individual must be able to demonstrate international recognition for their outstanding achievements in a particular academic field. He or she must have at least 3 years’ experience in teaching or research in that academic area. The alien individual 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. The Outstanding Professor or Researcher must have an offer from a prospective employer. Further, the alien individual must meet at least three of the following six listed criteria:
  • 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 
  • Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.

Multinational Manager or Executive

The Multinational Manager or Executive must have been employed outside the United States in the three years preceding the filing of the petition for at least one year by a firm or corporation. The Manager or executive must be seeking to enter the United States to continue service to that firm or organization. The 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. The petitioning employer must be a U.S. employer and must have been doing business for at least one year, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed the Manager or Executive abroad. Form I-140, Petition for Alien Worker must be filed by an employer.

EB2 – Second Preference Category

This category is for a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability. Most second-preference petitions must generally be accompanied by an approved individual labor certification from the Department of Labor on Form ETA-9089. The employer must file a Form I-140, Petition for Alien Worker for the alien individual. 

Advanced Degree

The job that employer offers must require an advanced degree. The alien individual must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field).  I-140 petition submitted to USCIS must be attached with documentation, such as financial documents (US Federal tax returns/annual reports) to establish ability to pay offered wage to alien individual, an official academic record showing that the alien beneficiary has a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that he or she has a U.S. baccalaureate degree or a foreign equivalent degree. Also, letters from current or former employers showing that the alien individual has at least 5 years of progressive post-baccalaureate work experience in the specialty must be submitted.

Exceptional Ability Alien

The alien individual 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.” I-140 petition must be attached with documentation that must meet at least three of following criteria:
  • Official academic record showing that he or she 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
  • Letters documenting at least 10 years of full-time experience in his or her occupation 
  • A license to practice profession or certification for his or her profession or occupation
  • Evidence that he or she has commanded a salary or other remuneration for services that demonstrates the exceptional ability 
  • Membership in a professional association(s)
  • Recognition for the achievements and significant contributions to his or her industry or field by his or her peers, government entities, professional or business organizations 
  • Other comparable evidence of eligibility.

National Interest Waiver 

This category involves alien individuals seeking a National Interest Waiver (NIW) requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a NIW are not defined by statute, it is usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the national. Those seeking a NIW may self-petition and do not need an employer to sponsor them. They may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.

The alien individual seeking NIW must meet at least three of the following criteria besides demonstrating that it is in the national interest that he or she would work permanently in the United States: 
  • Official academic record showing that he or she 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
  • Letters documenting at least 10 years of full-time experience in his or her occupation 
  • A license to practice profession or certification for his or her profession or occupation
  • Evidence that he or she has commanded a salary or other remuneration for services that demonstrates the exceptional ability 
  • Membership in a professional association(s)
  • Recognition for the achievements and significant contributions to his or her industry or field by his or her peers, government entities, professional or business organizations 
  • Other comparable evidence of eligibility.

NIW Physicians

The second-preference employment category (EB-2) allows individuals of exceptional ability and individuals who are members of the professions holding advanced degrees to get a green card (permanent residence).  For this category a job offer and a labor certification is generally required. This requirement can be waived if the petitioner demonstrates that granting the EB-2 petition would be in the national interest of the United States. USCIS may grant the national interest waiver if a physician agrees to work for a period of time in a designated underserved area.

The physician must agree to work full-time in a clinical practice for the required period of 5 years and must work in a primary care (such as a general practitioner, family practice petitioner, general internist, pediatrician, obstetrician/gynecologist, or psychiatrist). He or she could be even a specialty physician. The physician must serve in a designated underserved area i.e. either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA). A statement (known as an attestation) from a federal agency or a state department of health that has knowledge of the physician’s qualifications and which states that his or her work is in the public interest  must be obtained

EB3 – Third Preference Category

This immigrant visa preference category is applicable to skilled workers, professionals, or other workers. 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” / “Unskilled Workers” subcategory is for persons performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature.

The alien individual must be performing work for which qualified workers are not available in the United States. A full-time permanent job offer is required from an employer. The third-preference petitions must generally be accompanied by an approved individual labor certification from the Department of Labor on Form ETA-9089. For Schedule A, Group I cases (Nurses and Physical Therapists), there is no need for a certified ETA-9089 to be attached with the I-140 petition which is required to be filed by the employer.

Skilled Workers

The employer must be able to demonstrate that the alien individual possess at least 2 years of job experience or training. The alien individual must be performing work for which qualified workers are not available in the United States.

Professionals

The employer must be able to demonstrate that the alien individual possesses a U.S. baccalaureate degree or foreign degree equivalent, and that a baccalaureate degree is the normal requirement for entry into the occupation. The employer petitioning is not allowed to substitute education and experience for the baccalaureate degree. The alien individual must be performing work for which qualified workers are not available in the United States. 

Unskilled Workers (Other Workers)

The employer must demonstrate at the time the petition is filed that the alien individual is capable of performing unskilled labor (requiring less than 2 years training or experience), that is not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

EB4 – Fourth Preference Category

This preference category is for special immigrants such as 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, and spouses and children of deceased NATO-6 employees. An employer must file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. However, there are certain situations where one may self-petition on his or her own behalf.  Spouses and unmarried children under the age of 21 may be admitted to the United States.

Religious Worker

The fourth preference (special immigrant) category allows for foreign national ministers in religious vocations and occupations to immigrate to or adjust status in the United States for the purpose of performing religious work. The sunset date for non-minister religious workers to immigrate expired on September 29, 2012.

The foreign national minister must seek to enter the United States to work in a full time (average of at least 35 hours per week) compensated (salaried or non-salaried) position for a bona fide nonprofit religious organization in the United States (or a bona fide organization that is affiliated with the religious denomination). The foreign national must enter solely as a minister of that religious denomination and in a religious vocation/occupation either in a professional or nonprofessional capacity. Besides, the minister must have been a member of a religious denomination that has a bona fide nonprofit religious organization in the United States for at least the two years immediately preceding the filing of a petition of I-360, Petition for Amerasian, Widow(er), or Special Immigrant. Minister must also have been working in a religious vocation/occupation either abroad or in lawful immigration status in the United States, and after the age of 14 years continuously for at least two years immediately preceding the filing of a petition. 

A U.S. employer or the foreign national, on his/her own behalf, may file the petition requesting special immigrant religious worker classification. There are certain general requirements which must be satisfied by the religious worker as well as by the employing nonprofit religious organization.

The U.S. employer must submit proof of tax-exempt status for their religious organization  by providing a currently valid determination letter [501(c)(3)] from the IRS.  If the organization is affiliated with the religious denomination, then employer must provide documentation that establishes the religious nature and purpose of the organization besides the tax exempt letter. Employer must also submit organizational literature; a religious denomination certification, proof of salaried or non-salaried compensation, verifiable evidence of how the organization intends to compensate the religious worker, including specific monetary or in-kind compensation. As evidence of compensation employer may submit past evidence of compensation for similar positions, budgets showing monies set aside for salaries, leases, etc., evidence of room and boarding provided to the religious worker and IRS Form W-2 or certified tax returns.

The minister must show proof of membership (evidence that the religious worker is a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least two years immediately preceding the filing of Form I-360), qualifications to perform the duties of the offered position, copy of the religious worker’s certificate of ordination or similar documents, evidence (transcripts and curriculum) that religious worker completed any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination. If the denomination does not require a prescribed theological education, evidence of the religious denomination’s requirements for ordination to minister, list of duties performed by virtue of ordination and levels of ordination, if any must be submitted. Besides the evidence of the religious worker’s completion of the denomination’s requirements for ordination, he or she must submit proof of previous religious work (either abroad or in lawful immigration status in the United States).  For employment gained in the U.S. the religious worker should show that he received salaried compensation in the form of W-2 or certified copies of  income tax returns filed  reflecting such work and compensation. If the religious worker received non-salaried compensation, IRS documentation of the non-salaried compensation or an explanation for the absence of IRS documentation along with comparable, verifiable documentation must be submitted. Religious worker who received no salary but provided for his or her own support and that of any dependents must provide verifiable documents to show how support was maintained, such as audited financial statements, financial institution records, brokerage account statements, trust documents signed by an attorney, or other verifiable evidence acceptable to USCIS.

EB5 – Fifth Preference Category

Immigrant Investor Program

This category was introduced in 1990 to stimulate the economy of the United States through job creation and capital investment by foreign investors. Certain visas under this category are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth. The minimum qualifying investment in the United States is $1 million. In Targeted Employment Area (High Unemployment of at least 150% of the national average rate or Rural Area) investment could be $500,000.

The investors must invest in a new commercial enterprise (an enterprise conducting any for-profit activity formed for the ongoing conduct of lawful business and does not include noncommercial activity such as owning and operating a personal residence). The commercial enterprise may be a sole proprietorship, partnership, holding company, joint venture, corporation, business trust or similar entities and may be publicly or privately owned. In case of holding companies and its wholly owned subsidiaries, each subsidiary should be engaged in a for-profit activity formed for the ongoing conduct of a lawful business. The commercial enterprise must have been established after November 29, 1990. Commercial enterprise established before this date also qualifies if it is purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results. Also, it qualifies if it is expanded through investment so that a 40-percent increase in the net worth or number of employees occurs.

This investor related category requires creating or preserving at least 10 permanent, full-time and constant jobs (at least 35 hours per week) for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident. Under Immigrant Investor Pilot Program, "full-time employment" also means employment of a qualifying employee in a position that has been created indirectly from investments associated with such Program. There could be also a job-sharing arrangement whereby two or more qualifying employees share a full-time position. It would count as full-time employment provided the hourly requirement per week is met. However, it does not include combinations of part-time positions or full-time equivalents even if, when combined, the positions meet the hourly requirement per week.

The jobs being created or preserved may be either direct or indirect jobs. Direct jobs are actual identifiable jobs for qualified employees (U.S. citizen, permanent/conditional resident, asylee, a refugee, or a person residing in the United States under suspension of deportation and does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status or who is not authorized to work in the United States) located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital. When investor creates jobs collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor, those are considered indirect jobs. The foreign investor may only use the indirect job calculation if affiliated with a regional center. Also, the investor may only be credited with preserving jobs in a troubled business (an enterprise that has been in existence for at least two years and has incurred a net loss of at least 20% of its business net worth before the loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526). For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.

Capital invested could be cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets (will not include ones acquired, directly or indirectly, by unlawful means such as criminal activities) owned by the investor entrepreneur. The investor is not allowed to use the assets of the new commercial enterprise upon which the petition is based and that are not used to secure any of the indebtedness. The investor should take personally and primarily liability of the capital assets and is not allowed to borrow the investment capital. The capital should be valued at fair-market value in United States dollars.