Overview of Employment-Based Immigration
White & Associates provides legal assistance to those seeking to qualify for permanent residence in the US through employment, investment, or based on one’s own skills. While they are referred to as employment-based categories (EB), some of the categories do not require a job offer. The primary categories are as follows:
1st Employment-based Preference
There are three sub-categories for the 1st employment-based preference — a) individuals of extraordinary ability in the sciences, arts, education, business, and athletics; b) outstanding professors and researchers with universities or private employers that have established research departments; and c) managers and executives being transferred to work on a permanent basis in an affiliated company, such as a subsidiary, doing business in the US for at least one year. No labor certification is required for qualification in these three sub-categories. No offer of employment is required for an individual with extraordinary ability.
In order to demonstrate extraordinary ability it is necessary to show sustained national or international acclaim, and achievements in his/her field with documentation evidencing either receipt of a major international award (such as an Academy Award) or at least three of the following:
a) receipt of lesser national/international award;
b) membership in organization which requires outstanding achievements;
c) published material about the Individual;
d) acting as a judge;
e) making contributions of major significance;
f) authoring articles;
g) displaying works in more than one country;
h) playing a critical role in a distinguished organization;
i) commanding a high salary; and
j) achieving commercial success.
To qualify under the multinational executive/manager category, a US company must be engaged in active operations for at least one year, and invite you to work on a permanent basis as an executive or manager after working in a related foreign company. The executive or manager must work in the foreign company for at least one year of the previous three, and the companies must be related (affiliate, branch, subsidiary, parent, or joint venture). There are no limitations on the nature of the business operations (e.g., import-export, construction, service businesses, such as restaurants) and it is possible for the foreign executive or manager to purchase an already existing US company to satisfy the requirements for this category. Although the L-1 temporary visa process is relatively fast (2–3 months) compared to the immigrant visa process for multinational executives and managers, it is not necessary that the foreign executive or manager obtain an L-1 visa before applying for permanent residency. The L-1 visa process may be bypassed if there is no need for the foreign executive/manager to work immediately in the US. There is no Department of Labor review of these applications so the process can be completed quicker and with less difficulty than other employment-based categories.
2nd Employment-based Preference
There are two sub-categories for the 2nd employment-based preference: a) individuals of exceptional ability in the sciences, arts, or business and b) advanced-degree professionals. For these individuals a job offer and labor certification (US workers qualified for the job being offered are unavailable to fill the position) are required unless waived in the national interest. To qualify as an individual with exceptional ability, it is necessary to show at least three of the following:
a) degree in the area of exceptional ability;
b) at least ten years of experience;
c) a license to practice;
d) remuneration reflecting exceptional ability;
e) membership in professional association;
f) significant contributions to the field.
To qualify as an advanced-degree professional, it is necessary to have an advanced degree (e.g., Master’s) or a bachelor’s degree plus five years of progressive experience in a profession.
In order to qualify for a national interest waiver, the proposed employment must be in a) an area of substantial intrinsic merit; b) the proposed benefit must be national in scope; and c) the significant benefit derived must considerably outweigh the protection of US workers.
3rd Employment-based Preference
There are three sub-categories for the 3rd employment-based preference: a) professionals with bachelor’s degrees; b) skilled workers filling positions requiring at least two years of training and experience; and c) unskilled workers. A job offer is required for each of the above categories. Labor certification is also required (unless the professional’s occupation is pre-certified by the Department of Labor’s Schedule A: licensed physical therapists, professional nurses, and individuals with exceptional ability in the sciences or arts). Because of the tremendous demand for visas in this category and the quotas, the wait period encompasses many years.
5th Employment-based Preference for Investors (EB-5 Visa)
The EB-5 category has enjoyed substantial popularity in recent years. The requirements are:
a) the investor must invest $500,000 or $1 million in an enterprise (depending on its location);
b) this capital must be at risk;
c) the capital must have been obtained by lawful means;
d) the enterprise must create or maintain 10 full-time positions;
e) the enterprise must be new or a “troubled business”; and
f) the investor must be engaged in the management of the enterprise.
Permanent residency status is granted conditionally, with the condition removed upon the completion of a two-year period and a showing of satisfaction of the above terms. Because of the substantial demand for participation in the immigrant investor program, we have created a website dedicated entirely to EB-5 (www.e-b-5.com).
How long does the process take?
Depending on agency backlog, permanent residency via one of the employment categories may be granted in a relatively short period of time (within twelve months). If labor certification is required, this may increase the timeframe to several years.
How can White & Associates help?
Each of these categories is document intensive, requiring substantial evidence of your qualifications and the bona fides of the job offer. In particular, the criteria governing the extraordinary ability, national interest waiver, and entrepreneur-investor categories are quite rigorous, fraught with “legal minefields”, and require voluminous documentation. We preliminarily assess your chances of qualification, and upon proceeding, compile and prepare the petition thoroughly, with a view towards achieving your goal in the timeliest fashion. We may arrange evaluation of your educational credentials or expert testimonials. We can help identify business and investment opportunities to meet your immigration goals. Please contact us so that we may assess your chances of qualification under any of these categories.
