• Employment-Based Immigration
  • May 19, 2010
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Employment-Based Permanent Residency
    The United States makes approximately 140,000 immigrant visas available each fiscal year for aliens as well as their spouses and children who wish to immigrate to the United States based on their occupational skills. An individual needs the right combination of skills, education, and/or work experience to qualify for an employment-based immigrant visa and may be able to permanently reside in the United States. There are five employment-based immigrant visa preferences categories.
     

    Employment-Based Immigration - First Preference: Priority Workers

    The first preference category is EB-1, which is for individuals with extraordinary abilities in the sciences, arts, education, business, or athletics. This preference category also includes outstanding professors or researchers as well as multinational executives and managers.  

    Extraordinary Ability
    The Bureau of U.S. Citizenship & Immigration Services defines aliens with extraordinary abilities as individuals with “extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.” An award such as a Pulitzer, Oscar, Olympic Medal, Nobel Prize or similar award would typically prove extraordinary ability. 

    However, there are other means of establishing an individual’s extraordinary ability. An individual may be considered an alien with extraordinary ability if he or she can provide at least three of the following ten types of evidence: (1) receipt of lesser nationally or internationally recognized prizes or awards for excellence; (2) membership in associations in the field which demand outstanding achievement of their members; (3) published material about you in professional or major trade publications or other major media; (4) documentation that the alien has been asked to judge the work of others, either individually or as part of a panel; (5) documentation of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field; (6) authorship of scholarly articles in professionaH4>l or major trade publications or other major media; (7) documentation that the alien’s work has been displayed at artistic exhibitions or showcases; (8) documentation of the alien’s performance of a leading or critical role in distinguished organizations; (9) documentation that the alien commands a high salary or other significantly high remuneration in relation to others in the field; and (10) documentation of the alien’s commercial successes in the performing arts.

    It is important to note that being able to submit evidence in three of the above ten types of evidence is merely a threshold requirement for classification in this category. The Bureau of U.S. Citizenship and Immigration Services will determine whether the individual has reached the top of his or her field by looking at the strength of the evidence submitted. The foreign national is compared to his or her peers, not to the population in general, in order to determine if he or she truly possesses extraordinary ability.

    An Alien with extraordinary ability can self-petition for an immigrant visa by filing an I-140 Petition for Alien Worker with the appropriate supporting evidence with the Bureau of U.S. Citizenship & Immigration Services. 

    Outstanding Professor or Researcher
    To qualify as an outstanding professor or researcher, the foreign national must demonstrate international recognition for outstanding achievements in a particular academic field. The individual must have at least three years of experience in teaching or research in his or her particular academic area. He or she must also be entering the United States in order to pursue tenure, tenure track teaching, or comparable research position at a university or other institution of higher education.

    The outstanding professor or researcher is required to submit an offer of employment from his or her prospective United States employer. He or she must also submit evidence in at least two of the following: (1) receipt of major prizes or awards for outstanding achievement; (2) membership in associations that require their members to demonstrate outstanding achievement; (3) published material in professional publications written by others about the alien's work in the academic field; (4) participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field; (5) original scientific or scholarly research contributions in the field; and (6) authorship of scholarly books or articles in scholarly journals with international circulation.

    The outstanding professor or researcher must be sponsored by an employer. The intended employer must file the I-140 Petition for Alien Worker with the Bureau of U.S. Citizenship & Immigration Services. 

    Multinational Manager or Executive
    A multinational manager or executive must have been employed outside the United States in the three years preceding the filing of the I-140 Immigrant Petition for Alien Worker. The alien must also have been employed for a period of at least one year by the firm or corporation and be seeking to enter the United States to continue service said firm or organization. The alien’s employment must have been outside the United States in a managerial or executive capacity with the same employer, an affiliate, or a subsidiary of said employer.

    The petitioning employer must be a United States 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 alien abroad.

    The multinational manager or executive must be sponsored by an employer. The intended employer must file the I-140 Petition for Alien Worker with the Bureau of U.S. Citizenship & Immigration Services. 

    Employment-Based Immigration - Second Preference: Professionals with Advanced Degrees or Persons with Exceptional Ability

    The second preference category is EB-2, which is for individuals who are members of a profession holding an advanced degree or its equivalent or have exceptional ability in the sciences, arts, or business. An individual may obtain permanent residency without labor certification with a national interest waiver. The Bureau of U.S. Citizens & Immigration Services will usually grant a national interest waiver to those foreign nationals who have exceptional ability and whose employment in the United States would significantly benefit the national economy, cultural, or educational interests or welfare of the United States.  

    Typically, employment-based, second-preference petitions must be accompanied by an approved individual labor certification from the Department of Labor on Form ETA-750. However, a foreign national may be able to dispense with the labor certification if he or she qualifies for a national interest waiver. 

    Professionals Holding Advanced Degree 
    A foreign professional holding an advanced degree may be file a petition when the employment requires an advanced degree, which must be beyond a baccalaureate degree, and the alien possesses such a degree or the equivalent. This petition must be submitted with documentation including, but not limited to, an official academic record showing that the foreign national has a United States advanced degree or a foreign equivalent degree. In the alternative, the foreign national can submit documentation such as an official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree as well as letters from current or former employers showing that the alien has at least 5 years of progressive post-baccalaureate experience in his or her specialty. In addition, qualified foreign national physicians who will be practicing medicine in an area of the United States certified by the Department of Health and Human Services as underserved or a Department of Veteran Affairs facility may also qualify for EB-2 classification. 

    Exceptional Ability
    A foreign national may qualify for EB-2 classification based upon having an exceptional ability in the sciences, arts, or business. The foreign national must provide documentation from at least of three of the following: (1) an official academic record showing the foreign national 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; (2) letters documenting at least 10 years of full-time experience in his or her occupation; (3) a license to practice the profession or certification for a particular profession or occupation; (4) documentation that the foreign national has commanded a salary or other remuneration for services that demonstrates his or her exceptional ability; (5) membership in a professional association(s); and/or (6) recognition for the foreign national’s achievements and significant contributions to the industry or field by peers, government entities, or professional or business organizations.

    National Interest Waiver
    A national interest waiver allows a foreign national to bypass the U.S. Department of Labor’s Foreign Labor Certification process, because the individual’s employment is in the interest of the United States.  The types of employment that qualify for a national interest waiver are not defined by statute. National interest waivers are typically granted to those foreign nationals who have exceptional ability, as discussed in more detail above, and whose employment in the United States would greatly benefit the nation. The Bureau of U.S. Citizenship & Immigration Services considers national interest waiver requests on a case-by-case basis. Some of the factors considered in the adjudication process are: (1) improving the United States economy; (2) improving wages and working conditions of U.S. workers; (3) improving education and training programs for U.S. children and other qualified workers; (4) improving health care; (5) providing more affordable housing for young and/or older poorer U.S. residents; (6) improving the U.S. environment and making more productive use of natural resources; or (7) involving a request from an interested government agency. 

    Employment-Based Immigration - Third Preference: Skilled Workers, Professionals, or Other Workers

    The third preference category is EB-3, which is for individuals who are skilled workers, professionals, or other workers. A foreign national may obtain permanent residency in the third preference category if an individual Labor Certification has been certified by the U.S. Department of Labor and the foreign national has an offer of full-time, permanent employment. The eligibility requirements for third preference classification are less stringent than for first and second preference classifications. However, an extremely long backlog exists in the "other worker" category. 

    As part of the application process, the foreign national’s intended employer must be able to demonstrate an ability to pay the offered wage as of the visa priority date. The employer may demonstrate its ability to pay the offered age by annual reports, federal income tax returns, or audited financial statements.

    Skilled Workers
    Skilled worker positions are not seasonal or temporary and require the foreign national to have at least two (2) years of experience or training. The training requirement may be met through relevant post-secondary education. The foreign national must be performing work for which qualified workers are not available in the United States. The Form ETA-750 Application for Alien Employment Certification (i.e. Labor Certification) sets forth the job requirements, which determine whether a position is skilled or unskilled. 

    Professionals
    Professionals must possess a U.S. baccalaureate degree or foreign equivalent degree that is normally required for the profession. The occupation must normally require a baccalaureate degree. Professionals may not substitute education and experience for a baccalaureate degree. The foreign national must be performing work for which qualified workers are not available in the U.S.

    Other Workers
    Other workers are in positions that require less than two (2) years of higher education, training, or experience. The foreign national must be capable, at the time the petition is filed, of performing unskilled labor that is not of a temporary or seasonal nature, for which qualified workers are not available in the United States. However, it is important to remember that due to the long backlog, an employer could expect to wait many years before a visa in this category is granted.

    Employment-Based Immigration ¿ Fourth Preference: Special Immigrants

    A foreign national may be eligible for an employment-based, fourth preference visa if he or she is a special immigrant. The following special immigrants are eligible for the fourth preference visa: (1) Religious Ministers and Workers; (2) Broadcasters; (3) Iraqi/Afghan Translators; (4) Iraqis Who Have Assisted the United States; (5) International Organization Employees; (6) Physicians; (7) Armed Forces Members; (8) Panama Canal Zone Employees; (9) Retired NATO-6 employees; and (10) Spouses and Children of Deceased NATO-6 employees.

    Religious Workers
    To qualify as special immigrant religious worker, the foreign national must be a member of a religious denomination that has a non-profit religious organization in the U.S. for at least two (2) years immediately preceding the petition for admission to the U.S. The R-1 visas are made available to members of the clergy as well as key employees of religious organizations.  

    The foreign national must intend to work in on of the following capacities upon entering the U.S.: (1) as a minister or priest of the religious denomination; (2) in a professional capacity in a religious vocation or occupation for the religious organization; or (3) in a religious vocation or occupation for the religious organization or its nonprofit affiliate. A religious vocation means a calling or devotion to religious life; taking vows can prove that you have a calling to religious life. A religious occupation is an activity devoted to traditional religious functions. 

    Employment-Based Immigration - Fifth Preference: Investor Visa

    Annually, ten thousand (10,000) immigrant visas are available to qualified foreign nationals seeking permanent resident status on the basis of their engagement in a new commercial enterprise. The Bureau of U.S. Citizenship and Immigration Services sets aside three thousand (3,000) immigrant visas for those who apply under a pilot program involving designated "Regional Center." A "Regional Center" is a Service approved entity, organization or agency that has been approved, which focuses on a specific geographical area within the United States and seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.

    "Alien investors" must show that a "qualified investment" is being made in a new commercial enterprise located within an approved Regional Center. The foreign national must also demonstrate, using reasonable methodologies, at least ten (10) full-time jobs will actually be created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.

    In general, "eligible individuals" include those who establish a new commercial enterprise, which can include 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 one hundred and forty percent (140%) of the pre-investment number of jobs or net worth, or retaining all existing jobs in a trouble business that has lost twenty percent (20%) of its net worth over the past one (1) to two (2) years. The foreign national must have invested or actively in the process of investing at least one million dollars ($1,000,000), or at least five hundred thousand dollars ($500,000) where the investment is being made in a "targeted employment area." A “targeted employment area” is a locale that has experience unemployment of at least one hundred and fifty percent (150%) of the national average rate or a rural area. The new commercial enterprise will benefit the U.S. economy by creating at least ten (10) full-time employment opportunities 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." A “troubled business” is defined as a business that has been in existence for at least two (2) years and that has lost twenty percent (20%) of its net worth over the past one (1) to two (2) years.