• EB-1 FIRST PREFERENCE PRIORITY WORKERS
• EB-2 ADVANCED DEGREE PROFESSIONALS AND EXCEPTIONAL ABILITY WORKERS
• EB-3 THIRD PREFERENCE SKILLED WORKERS, PROFESSIONALS AND OTHER WORKERS
• EB-4 FOURTH PREFERENCE RELIGIOUS WORKERS
• EB-5 FIFTH PREFERENCE IMMIGRANT INVESTOR

Most employment based immigrants must go through a process called labor certification in which the individual seeking employment must prove that there are no qualified, willing, or able United States (U.S.) citizens or lawful permanent resident workers for the job. 

Unless the individual seeking permanent residence is a worker of "extraordinary ability," one whose work is in the "national interest," or one who is a "multinational manager or executive," the position must be approved by the Department of Labor (DOL) prior to filing the immigrant visa with United States Citizenship and Immigration Service (USCIS).

EB-1 First Preference Priority Workers

The first employment based immigration preference category is for individuals who are considered “priority workers.”  There are approximately 40,000 visas available in this category plus any unused visas from the fourth and fifth employment based categories.  The visas are granted on a first come/first served basis.

The EB-1 category covers three groups: Workers of extraordinary ability; outstanding professors and researchers; and, multinational managers and executives.  This category is different than the EB-2 category for individuals of “exceptional” ability in the sciences, arts or business.

One of the most attractive aspects of the EB-1 category is that the labor certification requirement does not apply. 

EB-1 Extraordinary Ability Workers:
For the first subset of the EB-1 priority worker category, there is no job offer required.  This means that either an employer may petition for an EB-1 extraordinary worker or the worker may petition for himself or herself.  If the worker self-petitions, he or she must show evidence of contracts or prearranged commitments for future employment or a description of how he or she will continue to be gainfully employed in the U.S.

USCIS regulations define extraordinary ability as a “level of expertise indicating that the individual is one of a small percentage that has risen to the very top of the field of endeavor.”  The statutes state that this level of ability must be demonstrated by sustained national or international acclaim and by recognition in the field by extensive documentation.  USCIS will look for evidence that the work the individual will perform will substantially benefit the U.S. 
 
In order to demonstrate extraordinary abilty, the applicant must show that his or her ability has been recognized in the field of endeavor through sustained acclaim.  This can be shown through a single major internationally recognized achievement such as a Nobel Prize, Pulitzer Prize or an Academy Award.  Alternatively, the applicant can demonstrate three of the following ten criteria:

• Receipt of lesser national or international prizes or awards for excellence in their field of endeavor;
• Membership in associations in the field of endeavor that require outstanding achievements of their members as judged by recognized national or international experts;
• Published material about the alien and his work in professional journals, trade publications, or the major media;
• Participation, either in a group or alone, as a judge of others in the same or a similar field;
• Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor;
• Authorship of scholarly articles in the field, published in professional journals or the major media;
• Display of the alien’s work at artistic exhibitions or showcases in more than one country;
• Performance in a lead, starring, or critical role for organizations with a distinguished reputation;
• Commanding a high salary compared to others in the field; or
• Commercial success in the performing arts, as shown by box office receipts and sales. 

Realizing that these ten categories of evidence do not encompass all the evidence that could be presented to show extraordinary ability, USCIS also allows for any other comparable evidence.

EB-1 Outstanding Professors and Researchers:
This second subset of the EB-1 priority worker category is for professors and researchers who are internationally recognized for their outstanding achievements.  In this category, the worker must have a job offer, but no labor certification is required.

The evidentiary requirements for this category are as follows:  

• International recognition as outstanding in a specific academic field;
• At least three years teaching or research in the field.  The teaching or research experience can be gained while in pursuit of an advanced degree, but only if the alien had full responsibility for the courses taught, or the research is recognized as outstanding; and
• An offer of employment.  The offer of employment must be (1) a tenure or tenure-track teaching position; or (2) a comparable research position at a university or institute of higher education,; or (3) a research position with a private company if the employer has at least three full time researchers and has documented research accomplishments in the field.  The position must be permanent meaning for an indefinite term or term of unlimited duration with an expectation of continued employment.

Unlike applicants in the extraordinary ability subcategory, applicants in the outstanding professor or researcher subcategory must have a job offer.  However, as with all first preference employment petitions, no labor certification is required.

The outstanding professor or researcher must demonstrate two of the following criteria:

• Receipt of a major prize or award for outstanding achievement in the academic field;
• Membership in associations that require outstanding achievements of their members;
• Published material in professional publications written by others about the applicant’s work;
• Participation as a judge of the work of others in the field;
• Original scientific or scholarly contributions in the field; or
• Authorship of scholarly books or articles in journals with international circulation.

EB-1 Multinational Executives and Managers: 
To qualify under the third type of EB-1 priority worker category, the worker must have worked for the petitioner (or a subsidiary or affiliate of the petitioner) outside the U.S. for at least one year of the previous three.  If the worker is already in the U.S., the required one year of employment in the past three will be determined by looking at the three years prior to the workers entry into the U.S. in nonimmigrant status.  This does not need to have been completed in one stretch, but can be aggregated.  This work outside the U.S. must have been in an executive or managerial capacity, and the worker must be coming to the U.S. to fill an executive or managerial job.    The U.S. business must have been established for at least one year before filing the petition.
 
For a person to be considered an executive, the executive must primarily: 

• Directs the management of the organization or major component;
• Have authority to establish polices and goals for the organization;
• Possess wide discretionary decision-making authority; and
• Be subject to only general supervision from higher executive, the board of directors, or stockholders.  

 
For a person to be considered a manager, the manager must primarily: 

• Manage the organization or a component, department, division or function of the organization;
• Supervise and control other managers or professional level personnel or manage an essential function within the organization or a department, or division of the organization;
• Possess authority to make personnel decisions including the hiring and firing of other personnel if employees are supervised and if no other employee is directly supervised, functions at a senior level within the organization hierarchy with respect to the function managed; and
• Have discretion to make decisions about operations.

First line supervisors do not necessarily count as managers even if they are directly managing the work of other employees.  To qualify, the manager must be supervising other professionals.

EB-2 Advanced Degree Professionals and Exceptional Ability Workers

The second preference employment category is reserved for two types of workers:  (1) workers who are members of professions holding advanced degrees or their equivalent and (2) workers with exceptional ability in the sciences, arts, or business who will substantially benefit prospectively the national economy, cultural or education interests, or welfare of the U.S.  There are 40,000 visas available annually in this category plus any unused visas from the employment based first preference category.  As a general rule, a labor certification is required, although in some cases a national interest waiver is available. 

EB-2 Advanced Degree Professionals:
A profession is an occupation in which a baccalaureate degree is the minimum requirement for entry level.  An advanced degree is any academic or professional degree above the level of a baccalaureate degree.  The individual seeking EB-2 classification must be entering a job that requires an advanced degree and the individual must either possess an advanced degree or a baccalaureate degree plus five years of progressive experience in the field to substitute for the advanced degree. 
 
Labor certification is required for EB-2 Advanced degree professionals unless a National Interest Waiver is obtained. 

EB-2 Workers of Exceptional Ability in the Sciences, Arts or Business:
An individual can obtain EB-2 classification for exceptional ability in the fields of art, sciences and business. Athletics are considered an art for purposes of EB-2 classification.  Exceptional ability is limited to aliens in the fields of arts, science and business. 

USCIS requires at least three of the following six types of evidence to show exceptional ability:

• For advance degree EB-2s, official record of a degree from a college, university or other learning institution related to the field in which the alien claims exceptional ability; 
• For exceptional ability EB-2s, evidence of ten years of full time experience in the field in which employment is sought (typically in the form of letters from past employers); 
• A license to practice or certification if required in the occupation; 
• For exceptional ability cases, evidence of a high salary or other form of payment that indicates exceptional ability; 
• For exceptional ability cases, evidence of membership in professional associations; and 
• For exceptional ability cases, evidence of recognition by peers or professional associations for achievements and contributions to the field. 

For exceptional ability EB-2 cases, labor certification is required unless a national interest waiver is obtained.

The National Interest Waiver for EB-2 Advanced Degree Professionals or Workers of Exceptional Ability in the Sciences, Arts or Business:
The EB-2 classification requires a labor certification by the petitioning employer unless a national interest waiver is obtained.  To obtain a national interest waiver the applicant must demonstrate that granting the EB-2 petition is in the national interest. 

There are two kinds of national interest waiver applications available.  One type is for physicians and the other type is for all other cases.  The Administrative Appeals Office has established seven main factors that are considered in determining whether a particular job is in the national interest:

• Improvement of the U.S. economy;
• Improvement of the wages and working conditions for U.S. workers;
• Improvement of educational and training programs for U.S. children and under-qualified workers;
• Improvement of health care;
• Provision of more affordable housing for young, aged, or poor U.S. residents;
• Improvement of the U.S. environment and more productive use of the national resources; and
• Admission is requested by an interested U.S. government agency.

More recently, the Administrative Appeals Office has focused on three factors:

• The worker seeks employment in an area of “substantial intrinsic merit;”
• The proposed benefit the worker will provide is “national in scope;” and
• The national interest would be adversely affected if labor certification were required.  In other words, the national benefit provided by the worker is so great as to outweigh the national interest in the labor certification process.

A physician national interest waiver is different from a standard national interest waiver.  To be eligible for a physician national interest waiver, the foreign physician must:

• Agree to work full-time in a clinical practice for five years unless the immigrant visa petition was filed prior to November 1, 1998, in which case the period of required service is 3 years; 
• Work in one of the following medical specialties: family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry;
• Serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), Medically Underserved Area (MUA), or a Veterans Affairs facility; and
• Obtain a determination from a federal agency or a state department of health that has knowledge of the physician's qualifications, which states that the physician’s work is in the public interest.

A period of service in an underserved area can affect a physician’s ability to apply to adjust status.  A physician can simultaneously file for adjustment of status when filing the I-140 petition unless green card numbers are not immediately available based on backlogs in the EB-2 category.

By applying for adjustment of status, the physician can also obtain an employment authorization document.  This relieves the physician of having to maintain any type of valid nonimmigrant status.  However, the physician may have an independent requirement to maintain H-1B status as part of a J-1 waiver service obligation.

While USCIS will allow the physician to apply for adjustment of status and obtain work authorization, USCIS will not make a final determination on any adjustment of status application submitted by a physician who is seeking a national interest waiver until the physician has practiced medicine full-time in a medically underserved area for an aggregate of 5 or 3 years, depending on the application filing date.

Upon receipt of the adjustment application on Form I-485, USCIS will note the date the physician began medical service, provide the physician with a list of evidence that must be submitted after the required period and provide the physician with a timeline by which the physician must send evidence to USCIS.

EB-3 THIRD PREFERENCE SKILLED WORKERS, PROFESSIONALS AND OTHER WORKERS

The EB-3 category is comprised of three different classifications of workers:  professionals; skilled workers; and other workers.  Professionals are defined as individuals who possess a baccalaureate degree and are entering a job which requires a baccalaureate degree for entry level.  Skilled workers are those who are entering jobs that require a minimum of two years of training or experience for entry level.  Other workers are those who are entering jobs that require less than two years of training or experience.

Only 10,000 visas are available in the other worker category resulting in significant backlogs and wait times of several years before a visa can be utilized in that category.  All jobs in the EB-3 category require a job offer and a labor certification.

EB-4 FOURTH PREFERENCE RELIGIOUS WORKERS

The EB-4 fourth preference employment based category covers "special immigrants."  Although it is classified as an employment based category, not all of the immigrants covered in this category obtain permanent residence through employment.  Please see FAMILY IMMIGRATION/SPECIAL IMMIGRANT JUVENILE PEITIONS for more information regarding this EB-4 category of non employment based permanent residence.

One of the special immigrant categories, however—the religious worker—does obtain permanent residence through employment.  There is a limit of 5,000 visas available annually to religious workers.

To qualify as an EB-4 religious worker, the applicant must be:  

• A minister;
• A person working in a professional capacity in a religious occupation or vocation; or,
• A person who works for a religious organization or an affiliate in a religious occupation who has been a member of the religious group for at least the two years immediately preceding the application; and
• The individual must be coming to work for a bona fide tax exempt religious organization.

The applicant must also have worked for the religious organization for at least two years prior to making the application.  The work may have been done in the U.S. or a foreign country.

A religious denomination is defined as a religious group that has some form of organized statement of faith, common belief system and similar ecclesiastical governing structure.  The affiliated groups should have a common set of religious guidelines, perform their religious ceremonies in similar ways, use the same set of ministerial materials such as hymnbooks and worship guides and have congregations.

A religious occupation is an activity relating to “traditional religious functions.”  This would include religious counselors, cantors, liturgical ministers and workers, religious hospital and health care workers, missionaries, religious translators and broadcasters.  It would not include individuals who work for the denomination in a non-religious capacity.

It would also include anyone who is in a religious vocation, defined as someone called to religious life and service.  This must be shown through demonstrated commitment to the denomination, the taking of vows and other types of life commitments.  This would include nuns, monks, brothers, and deacons.

In order to be considered a qualifying religious organization, the religious worker must work for a "bona fide, nonprofit, religious organization" or a "bona fide organization which is affiliated with the religious denomination." A bona fide, nonprofit, religious organization is described in USCIS regulations as one that would be tax exempt under the Internal Revenue Code.

EB-5 FIFTH PREFERENCE IMMIGRANT INVESTOR CATEGORY

The EB-5 immigrant investor visa category is for immigrants seeking to enter the U.S. to engage in a commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs.  There are 10,000 visas available in the category each year, 3,000 of which are reserved for people who participate in a Pilot Program option designed for targeted investments in approved regional areas.   

There are four basic requirements for the EB-5 visa.  They include: 

• The individual must establish a business or invest in an existing business that was created or restructured after November 19,1990;
• The individual must have invested $1 million unless the investor is investing in a “targeted employment area,” in which case the investment may be $500,000;
• The business must create full-time employment for at least 10 U.S. workers; and
• The EB-5 investor must be engaged in the management of enterprise either through day-to-day managerial control or through policy formulation.  A purely passive role is not permitted.

There are three types of qualifying business enterprises for EB-5 purposes.  They include:

• New commercial enterprises;
• Purchased existing business with simultaneous restructuring or reorganization such that a new commercial enterprise results; and
• Expanded existing businesses created after November 1990 through the investment of the required amount and the creation of ten new jobs.

Any for-profit business entity that conducts lawful business may serve as a qualifying business enterprise.  The business can be a sole proprietorship, partnership, holding company, joint venture, corporation, etc.  A holding company with its subsidiaries would also qualify if each subsidiary is engaged in the active conduct of business.  Passive investments do not qualify.

An investor can show the capitalization of the enterprise by making an investment in the form of cash, supplies, equipment, inventory, tangible property, cash equivalents and indebtedness secured by assets owned by the investor provided that the investor is personally and primarily liable for the debts and assets and the assets of the new commercial enterprise are not used to secure any of the indebtedness.

Multiple investors may establish a new commercial enterprise; however, each investor applying for the classification must meet the requirements for the EB-5 classification separately. For example, each investor must create 10 jobs for U.S. workers.

The basic investment amount required to be an EB-5 investor is $1 million. The required investment is $500,000 for a business established in a "targeted employment area." Targeted employment areas include:

• Rural areas, defined as any area other than one within a metropolitan statistical area or within the boundary of a city or town with a population of 20,000 or more; and
• Areas having an unemployment rate that is at least 150% of the national average.

For a Pilot Program investment, the threshold is a $500,000 capital contribution to a designated regional center which allocates portions of the capital in the form of business loans to small business within the targeted area.

For the purposes of the Pilot Program, any economic unit, public or private, involved with the promotion of economic growth of a particular region may qualify as a Regional Center. 

The investment must create at least 10 full-time jobs for U.S. citizens, lawful permanent residents or other immigrants lawfully authorized to be employed in the U.S. Full-time employees are defined to include workers working at least thirty-five hours per week.  This does not include nonimmigrants. In calculating the required number of employment positions, the investor may not include spouses or children, but may include other family members who are employed by the business.

Disclaimer: The information contained here is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk, and individual eligibility should be verified by consulting with an attorney in our office.  If you would like to make an appointment with an immigration attorney regarding your immigration matter, contact Joseph Law Firm, P.C.