The various employment=based categories are outlined below and should be examined in overview as one may qualify for and simultaneously pursue multiple avenues. Employment based immigrant visas are divisible between those that allow for self-petitioning and those that require an employer to sponsor.
Self Petitioning Categories: Those interested in self-petitioning are those who have made an impact in their field. Self-petitioning is available for those whose accomplishments qualify them for a National Interest Waiver (NIW) or for the Extraordinary Ability (EA) first preference category.
Categories Requiring Sponsorship: Those who are sponsored by an employer have two options available.
- First, the employer can undergo what is called a PERM process wherein the employer advertises the position to first identify and consider qualified U.S. Citizens or Permanent Residents seeking employment. If no U.S. worker having the same objective minimum qualifications as the alien is available, a labor certification may be granted.
- Second, there is a process for Outstanding Researchers that does not require the sponsoring employer to advertise the position, avoids the delay of pursuing a labor certification, and is easier to pursue than the EA or NIW. Our visa bulletin page shows when and for what countries this visa is currently available.
EB1 FIRST PREFERENCE -- Labor Certification Not Required
-- Self-Petitioning Allowed / Job Offer Not Required
-- Labor Certification Not RequiredApplicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise.
Applicants do not have to have a specific job offer but must provide evidence they are entering the U.S. to continue work in the field in which they have extraordinary ability.
Applicants can directly file their own petition with the CIS, rather than through an employer.
-- Labor Certification Not Required
Professors and researchers who are recognized internationally and have at least three years experience in teaching or research.
No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the CIS.
-- Labor Certification Not Required
Multinational executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity.
Pending the green card application process, the applicant must maintain your business operations in his or her home country.
No labor certification is required for this classification, but the prospective employer must provide proof of a permanent job offer and file a petition with the CIS.
Schedule A -- Labor Certification Not Required
Schedule A lists occupations for which the U.S. Department of Labor has determined there is an insufficient number of U.S. workers who are able, willing, qualified and available. Inclusion on Schedule A also establishes that the employment of foreign workers in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed. Therefore, 'Schedule A' foreign workers can obtain a green card without first having to go through the entire labor certification process.
A post-baccalaureate degree, or a baccalaureate degree with at least five years progressive experience in the profession.
The statute requires the alien be a member of the profession and hold an advanced degree but does not state that the position must require the advanced degree.
Exceptional Ability means having a degree of expertise significantly above that ordinarily encountered within the field.
Advanced-degree professionals and aliens with exceptional ability may avoid labor certification and job offer requirement if the exemption would be in the national interest. In such cases, the alien may file the petition with evidence of the national interest.
EB3 THIRD PREFERENCE
Skilled workers are persons capable of performing a job requiring at least two years training or experience.
Other Workers are those persons capable of filling positions requiring less than two years'' training or experience ("capable ... of performing unskilled labor, not of a temporary or seasonal nature ...")
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.
EB5 FIFTH PREFERENCE
-- Labor Certification Not Required -- Self-Petitioning Allowed / Job Offer Not Required -- Does not require you to maintain your existing home-country business -- Does not require extraordinary ability or exceptional ability
Engagement in a commercial enterprise serves as a basis for issuance of 10,000 EB-5 visas yearly. To qualify, the applicant must invest between U.S. $500,000 and $1,000,000, depending on the employment rate in the geographical area, in a commercial enterprise in the United States which creates 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.
Permanent resident status based on EB-5 eligibility is available to investors, either alone or coming with their spouse and unmarried children. Eligible aliens are those who have invested -- or are actively in the process of investing -- the required amount of capital into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create the requisite number of full-time jobs for qualified persons within the United States.In general, "eligible individuals" include those:
1. Who establish a new commercial enterprise by:
- Creating an original business;
- Purchasing an existing business and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results; or
- Expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months; and
2. Who have invested -- or who are actively in the process of investing -- in a new commercial enterprise:
- at least $1,000,000, or
- at least $500,000 where the investment is being made in a "targeted employment area," which is an area that has experienced unemployment of at least 150 per cent of the national average rate or a rural area as designated by OMB;
and
3. Whose engagement in a new commercial enterprise will benefit the United States economy and:
- create full-time employment for not fewer than 10 qualified individuals; or
- maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a "troubled business," which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.
The "investment" requirement can sometimes be lowered. For example, if you invest through a "Regional Center" or within a "Targeted Employment Area," then the investment requirement is only $500,000. ("Targeted Employment Areas" include "rural areas" or "high unemployment area.")
The "create 10 jobs" requirement is relaxed somewhat if you invest in certain ways. For example, if you invest through a Regional Center, CIS allows you to count the creation of "indirect" jobs in addition to the creation of "direct" jobs. The addition of "indirect" jobs makes it easier to meet the "create 10 jobs" requirement. Also, if you invest in a "troubled" business, you can count jobs "saved" in addition to jobs "created." This also makes it easier to meet the "create 10 jobs" requirement.
If you choose to invest on your own instead of through a Regional Center, you must ensure adequate financial reserves. When you invest on your own, you will be directly responsible for ensuring that the enterprise meets the "create 10 jobs" requirement.
Attention to EB5 drawback:
If you plan to go down this EB-5 path to your green card, it is critical that your case is ultimately successful. Unlike most other green card paths, the EB-5 category gives you "conditional" permanent resident status (i.e., a temporary green card) up front. This "conditional resident" mechanism means that after you receive your conditional green card, you will lose any previous nonimmigrant status (e.g., H-1, L-1, E-2, etc.) you may have had. Effectively, this particular green card mechanism pulls your nonimmigrant "safety net" out from under your green card effort. Therefore, a critical pre-screening of your investment and case is imperative to increase your chance of final approval.