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Permanent Workers

PERMANENT WORKERS

Want to come the U.S. as a permanent worker?

 

Each fiscal year approximately 140,000 immigrant visas become available for aliens and their spouses and children who are seeking to immigrate based on their job skills.

 

The U.S. fiscal year begins on October 1st and ends on September 30th of the following calendar year. If you have the right combination of education, skills, and/or work experience and are otherwise eligible, you may be able to live permanently in the U.S.

PERMANENT WORKERS

There are five employment-based immigrant visa preference categories used to organize and prioritize work visa applications.

A labor certification may be required. Read more here.

What is the First Preference – EB-1?

The First Preference is called “EB-1” and does NOT require a Labor Certification. EB-1 is a preference reserved for persons of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professor or researchers; and multinational executives and managers.

 

Who Is Eligible for First Preference – EB-1?

The EB-1 visa exists for persons seeking to enter the U.S. to continue working in the area of extraordinary ability and the U.S. must believe that your entry will benefit the country substantially.

(1) Persons of “extraordinary ability”

 

The term “extraordinary ability” means a level of expertise indicating that the individual is one of “that small percentage who have risen to the very top of the field of endeavor.” The petitioner must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim.

 

The petitioners achievements must be recognized in their field through extensive documentation. Under the EB-1 visa for a petitioner of extraordinary ability no offer of employment is required.

An example of sustained national or international acclaim is a Pulitzer, Oscar or Olympic Medal. These are very difficult and rare awards of achievement. However, there are other ways to meet the criteria.

 

The petitioner must be able to establish three out of the following 10 criteria below to prove extraordinary ability in their field:

  1. Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence

  2. Evidence of your membership in associations in the field which demand outstanding achievement of their members

  3. Evidence of published material about you in professional or major trade publications or other major media

  4. Evidence that you have been asked to judge the work of others, either individually or on a panel

  5. Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field

  6. Evidence of your authorship of scholarly articles in professional or major trade publications or other major media

  7. Evidence that your work has been displayed at artistic exhibitions or showcases

  8. Evidence of your performance of a leading or critical role in distinguished organizations

  9. Evidence that you command a high salary or other significantly high remuneration in relation to others in the field

  10. Evidence of your commercial successes in the performing arts

If the above standards do not readily apply to the petitioners occupation, the petitioner may submit comparable evidence to establish the petitioners eligibility. It should be reiterated, however, that the petitioner must show that they have sustained national or international acclaim and are one of the small percentage who has risen to the very top of the field of endeavor.

 

Even if you are able to satisfy 3 of the 10 criteria it does not guarantee that you will be granted an EB-1 Visa as a Petitioner of Extraordinary Ability. It is very important that you document and provide a very thorough and comprehensive listing of your qualifications to make your petition as strong as possible. The government is seeking to admit the very best of talent to the U.S. in hopes that it will benefit the country in a positive manner.

Neither an offer for employment in the U.S. nor a labor certification is required for this classification; however, the petition must be accompanied by clear evidence that the petitioner is coming to the U.S. to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contractors, or a statement from the beneficiary detailing plans on how he or she intends to continue their work in the U.S.

 

(2) Outstanding professors or researchers

 

To qualify the petitioner must demonstrate international recognition for their outstanding achievements in a particular academic field. The petitioner must have at least 3 years experience in teaching or research in that academic area. The petitioner must be entering the U.S. in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education. Likewise, to be considered an “outstanding” professor or researcher, an immigrant must be internationally recognized in their field, as shown by published works, awards, or other achievements.

Furthermore, “academic field” means a body of specialized knowledge offered for study at an accredited U.S. university or institution or higher education.

 

The petitioner must include documentation of at least two listed below and an offer of employment from the prospective U.S. employer.

  1. Evidence of receipt of major prizes or awards for outstanding achievement

  2. Evidence of membership in associations that require their members to demonstrate outstanding achievement

  3. Evidence of published material in professional publications written by others about the alien's work in the academic field

  4. Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field

  5. Evidence of original scientific or scholarly research contributions in the field

  6. Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

 

(3) Certain multinational executives and managers

To qualify the petitioner must have been employed outside the U.S. in the 3 years preceding the petition for at least 1 year by a firm or corporation and the petitioner must be seeking to enter the U.S. to continue service to that firm or organization. The petitioners employment must have been outside the U.S. in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.

The petitioners petitioning employer must be a U.S. employer. The employer must have been doing business for at least 1 year, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed the petitioner abroad. “Doing business” means the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence of an agent or office. “Executive capacity” means an assignment within an organization in which the employee primarily:

  1. Directs the management of the organization or a major component or function of the organization;

  2. Establishes the goals and policies of the organization, component, or function;

  3. Exercises wide latitude in dictionary decision-making; and

  4. Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

Furthermore, no labor certification is required for this classification; however, the prospective employer in the U.S. must furnish a job offer in the form of a statement which indicates that the petitioning alien is to be employer in the U.S. in a managerial or executive capacity. Such letter must clearly describe the duties to be performed by the alien.

What is the Second Preference – EB-2?

The Second Preference is called “EB-2” and requires a Labor Certification unless the applicant and obtain a national interest waiver. EB-2 is a preference reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.

Who is Eligible for the Second Preference – EB-2?

You may be eligible for an employment-based, second preference visa, if you are a member of the professions holding an advanced degree or its equivalent, or an alien who has exceptional ability.

(1) Advanced Degree

 

The job you apply for must require an advanced degree and you must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field).

The evidence required is documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty.

(2) Exceptional Ability

 

The job you apply for must require an advanced degree and you must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field).

The evidence requires is that you must meet at least three of the following:

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability

  • Letters documenting at least 10 years of full-time experience in your occupation

  • A license to practice your profession or certification for your profession or occupation

  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability

  • Membership in a professional association(s)

  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations

(3) National Waiver Exception

 

Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the U.S. though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the U.S. would greatly benefit the nation.

Those seeking a national interest waiver may self-petition (meaning they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.

You must meet at least three of the criteria below and demonstrate that it is in the national interest that you work permanently in the U.S.

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability

  • Letters documenting at least 10 years of full-time experience in your occupation

  • A license to practice your profession or certification for your profession or occupation

  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability

  • Membership in a professional association(s)

  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations

Note: Employment-based, second-preference petitions must generally be accompanied by an approved individual labor certification from the Department of Labor on Form ETA-750.

To qualify for an EB-2 visa, your employer must file a Form I-140, Petition for Alien Worker.

Are Family of EB-2 Visa Holders Eligible to Come to the United States?

Yes, your spouse and children are the age of 1 may be admitted to the U.S. in E-21 and E-22 immigrant status, respectively. During the process where you and your spouse are applying for permanent resident status (status as a green card holder), your spouse is eligible to file for an Employment Authorization Document (EAD).

What is the Third Preference – EB-3?

The Third Preference is called “EB-3” and requires a Labor Certification. EB-3 is a preference reserved for professionals, skilled workers, and other workers.

Who is Eligible the Third Preference – EB-3?

 

You may be eligible for this immigrant visa preference category if you are a skilled worker, professional, or other worker.

  • 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

  • Other Workers” subcategory is for persons performing unskilled labor requiring less than 2 years training or experiences, not of a temporary or seasonal nature.

(1) Skilled Workers

 

Skilled Workers must be able to demonstrate at least 2 years of job experience or training and must be performing work for which qualified workers are not available in the U.S. Labor Certification and a permanent, full-time job offer are required.

(2) Professionals

 

Professionals must able to demonstrate that you possess a U.S. baccalaureate degree or foreign degree equivalent, and that a baccalaureate degree is the normal requirement for entry into the occupation. Professionals must able be performing work for which qualified workers are not available in the U.S. Furthermore, education and experience may not be substituted for a baccalaureate degree. Labor Certification and a permanent, full-tie job offer are required.
 

(3) Unskilled Workers

 

Unskilled Workers (Other Workers) must be capable, at the time the petition is filed on your behalf, 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 U.S. Labor Certification and a permanent, full-time job offer are required.

Note: while eligibility requirements for the third preference classification are less stringent, you should be aware that a long backlog exists for visas in the “other workers: category. See the “Department of State: Visa Bulletin” page.

Is a Labor Certification Required for a Third Preference EB-3?

Third preference petitions must generally be accompanied by an approved, individual labor certification from the Department of labor on Form ETA-9089. In some cases, the petition may be submitted to the U.S. Citizenship and Immigration Service (USCIS) with an uncertified ETA-9089 for consideration as Schedule A, Group 1.

What is the EB-3 Application Process?

Your employer (petitioner) must file a Form I-140, Petition for Alien Worker. As part of the application process, your employer must be able to demonstrate an ability to pay the offered wage as of your visa priority date. Your employer may use an annual report, federal income tax return, or audited financial statement to demonstrate an ability to pay your wage.

Can Family of EB-3 Visa Holders Come to The United States?

Yes, your spouse may be admitted to the U.S. in E34 (spouse of a “skilled worker” or “professional”) or EW4 (spouse of an “other worker). During the process where you and your spouse are applying for permanent resident status (status as a green card holder), your spouse is eligible to file for an Employment Authorization Document (EAD). Your minor children (under the age of 21) may be admitted as E35 (child of a “skilled worker” or “professional”) or EW5 (child of an “other worker”).

What is the Fourth Preference – EB-4?

The Fourth Preference is called “EB-4” and does NOT require a Labor Certification. EB-4 is a preference reserved for “special immigrants,” which includes certain religious-workers, employees of U.S. foreign service posts, retired employees of international organizations, alien minors who are wards of court in the U.S., and other classes of aliens.

Who is Eligible for the Fourth Preference – EB-4?

 

You may be eligible for an employment-based, fourth preference visa if you are a special immigrant. The following special immigrants are eligible for the fourth preference visa.

  • Religious Workers

  • Special Immigrant Juveniles

  • Broadcasters

  • G-4 International Organization or NATO-6 Employees and Their Family Members

  • International Employees of the U.S. Government Abroad

  • Armed Forces Members

  • Panama Canal Zone Employees

  • Certain Physicians

  • Afghan and Iraqi Translators

  • Afghan and Iraqi Nationals Who Have Provided Faith Service in Support of U.S. Operations

Petitioning for an Employment-Based Fourth Preference Immigrant

To petition for an employment-based fourth preference immigrant, your employer must file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. However, there are certain situations where you, the employee, may self-petition on your own behalf.

Broadcasters

 

Under Section 203(b)(4) of the Immigration and Nationality Act, the United States Agency for Global Media (USAGM), or a grantee of the USAGM, may petition for an alien (and the alien’s accompanying spouse and children) to work as a broadcaster for the USAGM or a grantee of the USAGM in the United States. For the purposes of this section, the terms:

  • USAGM grantee means Radio Free Asian, Inc (RFA) or Radio Free Europe/Radio Liberty, Inc. (RFF/RL)

  • Broadcaster means a reporter, writer, translator, editor, producer or announcer for news broadcasts; hosts for news broadcasts, news analysis, editorial and other broadcast features; or a news analysis specialist. The term broadcaster does not include individuals performing purely technical or support services for the USAGM or a USAGM grantee.

 

All Form I-360 petitions submitted by the USAGM or a USAGM grantee on behalf of an alien for a broadcaster position with the USAGM or USAGM grantee must be accompanied by a signed and dated supplemental attestation that contains the following information about the prospective alien broadcaster:

(i) The job title and full description of the job to be performed; and

(ii) The broadcasting expertise held by the alien, including how long the alien has been performing duties that relate to the prospective position or a statement as to how the alien possesses the necessary skills that make him or her qualified for the broadcasting-related position within the USAGM or USAGM grantee.

Can Family of EB-4 Visa Holders Come to The United States?

 

Yes, some EB-4 classifications allow derivative beneficiaries. Your spouse may also be admitted to the U.S. Your children, unmarried under the age of 21, may be admitted to the U.S.

What is the Fifth Preference– EB-5?

The Fifth Preference is called “EB-5” and does NOT require a Labor Certification. EB-5 is a preference reserved for business investors who invest $1.8 million or $900,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers.

As part of the Immigration Act of 1990, Congress established the EB-5 immigrant visa classification to incentivize employment creation in the U.S. As enacted by Congress, the EB-5 program makes lawful permanent resident (LPR) status available to foreign nationals who invest at least $1.8 million in a new commercial enterprise (NCE) that will create at least 10 full-time jobs in the U.S.

The INA permits DHS to specify a higher investment amount if the investment is in a high employment area or a lesser investment amount if the investment is in a TEA ($900,000). The INA allots 9,940 immigrant visas each fiscal year for foreign nationals seeking to enter the U.S. under the EB-5 classification. Not less than 3,000 of these visas must be reserved for foreign nationals investing in TEAs.

A foreign national seeking LPR status under the EB-5 immigrant visa classification must go through a multi-step process during which the investor must sustain the investment. The individual must first file an Immigrant Petition by Alien Investor (Form I-526, or “EB-5 petition”) with USCIS.

 

The petition must be supported by evidence that the foreign national’s lawfully obtained capital is invested (i.e., placed at risk), or is actively in the process of being invested, in a new commercial enterprise in the U.S. that will create full-time positions for not fewer than 10 qualifying employees.

If the USCIS approves the EB-5 petition, the petitioner must take additional steps to obtain LPR status. In general, the petitioner may either apply for an immigrant visa through a Department of State (DOS) consular post abroad or, if the petitioner is already in the U.S. and is otherwise eligible to adjust status, the petitioner may seek adjustment of status by filing an Application to Register Permanent Residence or Adjust Status (Form I-485, or “application for adjustment of status”) with USCIS.

 

Congress has imposed limits on the availability of such immigrant visas, including by capping the annual number of visas available in the EB-5 category and by separately limiting the percentage of immigrant visas that may be issued on an annual basis to individuals born in any one country.

To request an immigrant visa while abroad, an EB-5 petitioner must apply at a U.S. consular post. The petitioner must generally wait to receive a visa application packet from the DOS National Visa Center to commence the visa application process. After receiving this packet, the petitioner must collect required information and file the immigrant visa application with DOS.

 

As noted above, the wait for the visa depends on the demand for immigrant visas in the EB-5 category and the petitioner’s country of birth. Generally, DOS authorizes the issuances of a visa and schedules the petitioner for an immigrant visa interview for the month in which the priority date will be current. If the petitioner’s immigrant visa application is ultimately approved, he or she is issued an immigrant visa and, on the date of admission to the U.S., obtains LPR status on a conditional basis.

Alternatively, an EB-5 petitioner who is in the U.S. in lawful nonimmigrant status generally may seek LPR status by filing with USCIS an application for adjustment of status, Form I-485. Before filing such an application, however, the EB-5 petitioner must wait until an immigrant visa is “immediately available” if the petitioner’s priority date under the EB-5 category is earlier than the relevant date indicated in the monthly DOS Visa Bulletin.

Whether obtained through the issuance of an immigrant visa or adjustment of status, LPR status based on an EB-5 petition is granted on a conditional basis. Within the 90-day period preceding the second anniversary of the date the immigrant investor obtains conditional permanent resident status, the immigrant investor must file with USCIS a Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829).

Failure to timely file Form I-829 results in automatic termination of the immigrant investor’s conditional permanent resident status and the initiation of removal proceedings. In support of the petition to remove conditions, the investor must show, among other things, that the commercial enterprise was established, that he or she invested or was actively involved in investing the requisite capital, that he or she sustained those actions for the period of residence in the U.S., and that job creation requirements were met or will be met within a reasonable time.

 

If approved, the conditions on the investor’s permanent residence are removed as of the second anniversary of the date the investor obtained conditional permanent residence status.

What is The EB-5 Regional Center Program?

 

Enacted in 1992, section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Public Law 102-395, 106 sta. 1828, established a pilot program that requires the allocation of a limited number of EB-5 immigrant visas to individuals who invest through DHS-designated regional centers. The Regional Center Program was initially designed as a pilot program set to expire after 5 years, but Congress has continued to extend the program to the present day.

Under the Regional Center Program, foreign nationals base their EB-5 petitions on investments in new commercial enterprises located within “regional centers.” DHS regulations define a regional center as an economic unit, public or private, that promotes economic growth, regional productivity, job creation, and increased domestic capital investment.

 

While all EB-5 petitioners go through the same petition process, those petitioners participating in the Regional Center Program may meet statutory job creation requirements based on economic projections of either direct or indirect job creation, rather than only on jobs directly created by the new commercial enterprise. In addition, Congress authorized the Secretary to give priority to EB-5 petitions filed through the Regional Center Program.

Requests for regional center designation must be filed with USCIS on the Application for Regional Center Designation Under the Immigrant Investor Program (Form I-924). Once designated, regional centers must provide USCIS with updated information to demonstrate continued eligibility for the designation by submitting an Annual Certification of Regional Center (Form I-924A) on an annual basis or as otherwise required by USCIS.

As of September 10, 2018, there were 886 designated regional centers. Under the new rule, there may be centers closing down based on the redefinition of what qualifies as a TEA. USCIS may seek to terminate a regional center’s participation in the program if the regional center no longer qualifies for the designation, the regional center fails to submit the required information or pay the associated fee, or USCIS determines that the regional center is no longer promoting economic growth.

What Are Things to Know Regarding the New EB-5 Rule Change?

The Priority Date of a Petition for classification as an investor is the date the petition is properly filed. There is a strong possibility that the EB-5 category will remain oversubscribed for the foreseeable future. Petitioners with approved immigrant petitions might need to file new petitions due to circumstances beyond their control (for instance, DHS might have terminated a regional center associated with the original petition), or might choose to do so for other reasons (for instance, due to business conditions a petitioner may seek to materially change aspects of his or her qualifying investment).

 

EB-5 petitioners retain their priority date of the previously approved petition to avoid delays on immigrant visa processing associated with loss of a priority date. As such, a petitioner with multiple approved immigrant petitions for classification as an investor is entitled to the earliest qualifying priority date. In general, when demand exceeds supply for a particular visa category an earlier priority date is more advantageous than a later one.

 

In addition, if you have been approved for an EB-5 petition in the past but since been revoked on grounds not specifically excepted in the provision you may retain the earlier priority date from previous petitions. However, if the petition was revoked for fraud or willful misrepresentation by the petition or for material error the prior priority date will not qualify.

The benefit of these changes is that it makes visa allocation more predictable for investors with less possibility for large fluctuations in visa availability dates due to regional center termination. It provides greater certainty and stability regarding the timing of eligibility for investors pursuing permanent residence in the U.S. and thus lessens the burden of unexpected changes in the underlying investment. Furthermore, it provides more flexibility to investors to contribute to more viable investments, potentially reducing fraud and improving potential for job creation.

For Targeted Employment Area (TEA) the amount is now $900,000 while regular EB-5 is now 1.8 million.

Derivative family members must file their own petitions to remove conditions on their permanent residence when they are not included in a petition to remove conditions filed by the principal investor. Interviews may now be scheduled at the USCIS office having jurisdiction over either the immigrant investor’s commercial enterprise, the immigrant investor’s residence or the location where the Form I-829 petition is being adjudicated, thus making the interview program more effective and reducing burdens on the immigrant investor.

 

Due to these changes some petitioners will further benefit by traveling shorter distances for interview and thus see a cost savings in travel costs and opportunity costs of time for travel and interview time.

Existing petitioners will not be denied a petition filed prior to this rule’s effective date, November 21, 2019, or revoke an approved petition based solely on the fact that the underlying investment offerings have been amended or supplemented as a result of the new rule to maintain compliance with applicable securities laws.

 

This addresses situations in which, for instance, an investor is actively in the process of investing into an ongoing offering and filed a Form I-526 petition that is pending on the effective date of the new rule, but the documents for the offering need to be modified to ensure compliance with applicable securities laws because of the increase to the minimum investment amounts resulting from the new rule.

 

The new rule states that TEA may qualify only for cities and towns with a population of 20,000 or more outside of metropolitan statistical areas (MSAs).

What is a Labor Certification and Do I Need One?

 

Some immigrant visa preferences require that you already have a job offer from a U.S. employer. This employer will be considered your sponsor. For some visa categories, before the U.S. employer can submit an immigration petition to USCIS, the employer must obtain an approved labor certification from the U.S. Department of Labor. The U.S. Department of Labor Certification verifies the following:

  • There are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage

  • Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

A Department of Labor Certification required for U.S. employers seeking to employ individuals whose immigration to the U.S. is based on job skills or nonimmigrant temporary workers coming to perform services for which qualified authorized workers are unavailable in the U.S.

 

Labor Certification is used by the secretary of labor and contains attestations by U.S. employers of the numbers of U.S. workers available to undertake the employment sought by an applicant, and the effect of the alien’s employment on the wages and working conditions of U.S. workers similarly employed. Determination of labor availability in the U.S. is made at the time of a visa application and at the location where the applicant wishes to work.