Employment Based Green Cards

In 1990, Congress created a priority system for granting permanent residence to aliens based on employment skills. Annually 140,000 (not including dependents) immigration visas are available for principal aliens who qualify under five employment-based (“EB”)
preference categories. 

CATEGORIES

FIRST                       

EB-1   Priority Workers                      40,000 visas per year

• Aliens of extraordinary ability in the sciences, arts, education, business, or athletics
•  Outstanding professors or researchers
• Certain managers and executives transferred to the United States to work for their foreign employer or a U.S. affiliate or subsidiary firm.

SECOND      

EB-2   Advanced degree Professionals and Aliens of Exceptional Ability

                                                                 40,000 visas per year

• Aliens of exceptional ability in the sciences, arts, or business.
• Members of the professions, if they hold an advanced degree (or the equivalent).

THIRD          

EB-3            Skilled Workers, Professionals and other Workers

                                                               40,000 visas per year

• Professionals with bachelor’s degrees (not qualifying for a higher preference category)
• Skilled workers (minimum two years training and experience)
•  Unskilled workers (maximum 10,000 visas available per year)

FOURTH      

EB-4            Special Immigrants – Religious Workers

                                                               10,000 visas per year

Religious workers includes:

• Ministers (those authorized to conduct worship services and perform other duties assigned to the clergy of the religion)
• Religious workers in professional fields
• Other religious workers.

Limit on admissions:  Until September 30, 2008, up to 5,000 EB-4 immigrant visas may be made available each fiscal year to religious workers who are not ministers. Ministers are not subject to this limit.
After September 30, 2008, religious workers other than ministers will no longer qualify as EB-4 immigrants.  Ministers will still qualify after September 30, 2008.
 
FIFTH           

EB-5            Immigrant Investors   10,000 visas per year 

Alien entrepreneurs whose new commercial enterprises will directly create 10 or more new jobs in the U.S.

PROCEDURE

Step 1              Visa petition process
 
An eligible petitioner must file with the appropriate USCIS office an I-140 for the alien seeking to immigrate. In most cases, the eligible petitioner is the U.S. employer seeking to employ the alien. Under some situations, the alien himself or herself may file the petition.
 
For 2nd and 3rd employment-based classifications: An alien may not immigrate in the 2nd or 3rd employment-based classifications unless the Secretary of Labor has determined that there are not enough domestic workers available in the United States to perform the intended employment in the part of the United States where the alien will be employed and that the alien’s immigration will not adversely affect wages and working conditions in the United States. The intending employer may not file a Form I-140 with USCIS unless the intending employer has obtained this labor certification, and includes the labor certification with the Form I-140
 
Step 2              Acquisition of permanent residence 
 
A. If the alien is present in the U.S. in a lawful nonimmigrant status, the alien may apply for adjustment of status by filing Form I-485 with the appropriate USCIS office. If the alien wants to engage in employment while the adjustment application is pending; the alien should also file Form I-765 with the Form I-485.
NOTE: If the alien’s priority date is current, the alien may file these forms at the same time as the employer’s filing of the Form I-140.
 
B. If the alien is abroad, or is not eligible for adjustment of status, the alien may apply for an immigrant visa at a U.S. consulate abroad once the alien’s priority date is current. If the alien obtains the immigrant visa, the alien becomes a permanent resident when the alien travels to the U.S. with the immigrant visa and is admitted by an immigration inspector.
Determining the priority date: Immigrant visas are available in the order in which the underlying visa petition was filed. The “priority date” determines an alien’s “place in line.”
For EB-1immigrants, the priority date is the date Form I-140 is filed with USCIS.
For EB-2 and EB-3 immigrants, the priority date is the date the employer applies for the labor certification, if an individual labor certification is required. If an individual labor certification is not required, the priority date is the date the employer files the Form I-140 with USCIS.
For EB-4 Immigrants, Form I-360 is used instead of Form I-140. The priority date is the date of filing the Form I-360.
 
The Visa Office, U.S. Department of State, publishes for each month a Visa Bulletin, which specifies the priority date for each immigrant visa classification. If an individual’s priority date is earlier than the priority date shown in the Visa Bulletin for the particular immigrant visa classification, then an immigrant visa is available for the individual’s use. If the Visa Bulletin shows the priority date as “C,” then an immigrant visa is available for all approved visa petition beneficiaries in that classification. 
  
EB-1:  FIRST PREFERENCE 
 
1)     Aliens with extraordinary ability
 
WHO MAY FILE:

The alien may file the Form I-140 on the alien’s own behalf. So may any other person acting on the alien’s behalf.
 
DEFINITION OF “EXTRAORDINARY ABILITY”

Extraordinary ability means a level of expertise found only in that small percentage of persons who have risen to the very top of their respective fields.
 
REQUIREMENTS:

• Alien’s extraordinary achievements in the sciences, arts, education, business, or athletics have resulted in sustained national or international status in the alien’s field
• Alien intends to enter the U.S. to work in the field in which he or she has earned extraordinary status
• USCIS finds that alien’s admission, as a permanent resident will substantially benefit the U.S.

DOCUMENTATION

Alien must demonstrate a major achievement such as an internationally recognized award (for example Nobel Prize) or evidence establishing at least three of the following:

1. Lesser national or international award for excellence in the field of alien’s intended U.S. employment.
2. Membership in association(s) in alien’s field that require members to have demonstrated outstanding achievements as judged by acknowledged experts
3. Published material about the alien in major professional/trade publications or other major media
4. Selection of alien to judge others in the same or allied field 
5. Original contributions of importance in the alien’s field 
6. Authorship of scholarly articles in professional/trade publications or other major media 
7.  Display of alien’s work in artistic exhibitions 
8. Performance of leading or critical role for distinguished organizations or institutions 
9. High salary or other remuneration in relation to others in alien’s field 
10. Commercial success in the performing arts (box office receipts, recordings, videos, etc.)

EMPLOYMENT IN THE US
 
The alien of extraordinary ability need not be seeking “employment” in the United States. The alien must, however, be coming to the U.S. to continue to work in the area of the alien’s extraordinary ability. Thus, the alien must present employment offers, prearranged commitments, arrangements to engage in self-employment, or other evidence showing that the alien will continue to work in the area of the alien’s extraordinary ability.
 
2)         Outstanding Professors and Researchers
 
WHO MAY FILE:

The intending U.S. employer must file the Form I-140.
 
REQUIREMENTS:

• Evidence of international recognition in area of academic specialty demonstrated by submitting evidence of two of the following:
  1. Receipt of major prizes/awards for outstanding achievement in the field
  2. Membership in an association requiring outstanding achievement in the field
  3. Published material in professional publications written by others about the applicant’work in the field
  4. Participation as a judge of the work of others in the field
  5. Original scientific or scholarly research
  6. Authorship of scholarly articles/books in the specialty area
• 3 years experience in teaching or research (includes graduate or post doctoral work, if qualifying)
• An offer for a tenure track teaching or comparable research position (of unlimited duration) at an institution of higher education or private institution of demonstrated research accomplishments in the field that employs at least 3 full-time researchers.

3)         Certain Multinational Executives and Managers
 
WHO MAY FILE:

The intending U.S. employer must file the Form I-140, The intending U.S. employer must be the same firm, or a subsidiary or affiliate of the firm, who employed the alien abroad.
 
REQUIREMENTS:

• During the three years immediately preceding the filing the petition, the alien must have been employed abroad by the U.S.employer (or a subsidiary or affiliate of the U.S. employer) for at least one year as a manager or executive.
• The alien must be coming to the U.S. to continue employment as a manager or executive with the foreign employer or U.S. subsidiary or affiliate.

EB-2:  SECOND PREFERENCE 
 
1)         Professionals with advanced degrees (or the equivalent), or aliens of exceptional ability in arts, sciences, or business.
 
REQUIREMENTS FOR ALL SECOND PREFERENCE CASES:

Unless the alien obtains a national interest waiver, no alien qualifies as an EB-2 immigrant unless an employer in the U.S. is seeking the alien’s service in the qualifying field of employment.  The intending U.S. employer must obtain a labor certification, unless USCIS waives the job offer requirement. Unless the field of employment is listed as a “Schedule A” occupation an individual labor certification is required.
 
WHO MAY FILE:

Unless the alien seeks a waiver of the job offer requirement, the intending U.S. employer must file the Form I-140. If the alien does seek a waiver of the job offer requirement, then the alien, or someone acting on the alien’s behalf, may file the I-140.
 
REQUIREMENTS FOR MEMBERS OF THE PROFESSIONS HOLDING ADVANCED DEGREES (or the equivalent)

An alien qualifies for the Second Preference Employment-Based classification as a member of the professions holding an advanced degree (or the equivalent) only if:

• The position to be filled by the beneficiary must require a member of the professions with an advanced degree or the equivalent.
• The beneficiary has the credentials specifically required for the position.

Member of the professions include architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries, as well as those working in any other occupation for which a United States baccalaureate
degree or its foreign equivalent is the minimum requirement for entry into the occupation.
Advanced degree means an academic or professional degree beyond the baccalaureate.
Or the equivalent means the possession of a bachelor’s degree in the field, followed by at least five years of progressive experience in the specialty.
 
2)         Aliens of exceptional ability
 
Exceptional ability requires a degree of expertise significantly above that ordinarily encountered.
“The arts” includes athletics and entertainment.
 
REQUIREMENTS:

Exceptional ability in the arts, sciences, or business, demonstrated by a minimum of three of the following types of documentation relating to the field of exceptional ability

1. Official academic record demonstrating that alien has earned degree(s)
2. Statement(s) from employer(s) demonstrating at least ten years of full-time experience in the field
3. License or certification for professional practice
4. Salary or other remuneration for services commensurate with that of a professional
5. Membership in professional association(s)
6. Recognition by peers or government/professional entities for achievements and contributions
    
   National Interest Waiver
   In order to obtain a national interest waiver, a petitioner must submit evidence to support the claim that such an exemption would be in the national interest. The term national interest is not defined by statute or regulation and each case is judged on its own merit.
    
   National Interest Waiver for Physicians
   Special rules were established by statute and regulations for certain physicians who are willing to work full-time for five (5) years in medically underserved areas or at VA facilities. The Secretary of Health and Human Services (HHS) currently limits physicians in designated shortage areas to the practice of family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology and psychiatry.
    
   REQUIREMENTS:

The petition must meet all documentary requirements of the EB-2 category such as petition with national interest waiver request, evidence of advanced degree or exceptional ability. In addition, the following must be submitted:

• Full-time employment contract, employment commitment letter from a VA facility, or if elf-employed, sworn statement committing to full-time practices of clinical medicine and steps taken to establish such practice.
• Evidence that the service will be provided in a medically underserved area designated by the HHS or a VA facility.
•  Attestation from a Federal agency or state health department issued within six (6) months of the filing of the petition that the physician’s work is or will be in the national interest.
•  Evidence that the physician meets the admissibility requirements that requires graduates of an unaccredited medical school to have passed parts I and II of the National Board of Medical Examiners Examination (or an equivalent examination) and is competent in oral and written English.
• Evidence of BCIS-issued waiver if the physician has been a J-1 receiving medical training in the U.S 

EB-3:  THIRD PREFERENCE

WHO MAY FILE:

The intending U.S. employer must file the Form I-140. 
  
LABOR CERTIFICATION:

The intending U.S. employer must obtain a labor certification. Unless the field of employment is listed as a “Schedule A” occupation an individual labor certification is required.
 
DEFINITIONS:

• Skilled worker means one capable of performing labor that requires at least two years of training or experience. Member of the professions include architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries, as well as those working in any other occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.
• Other workers include all beneficiaries with lower credentials than skilled workers who perform unskilled labor.

REQUIREMENTS:

The common requirement for each subcategory is that the offered job must require a person with the stated qualifications (skilled work, membership in a profession, unskilled work) and the alien must have the required qualifications. For example, a member of one of the professions who holds a bachelor’s degree would not qualify for EB-3 status if the proffered employment did not require a person with that qualification. 
  
EB-4:  FOURTH PREFERENCE
 
Religious workers are divided into three subcategories: ministers, professionals and workers in a religious occupation or vocation. Note: Only ministers will qualify as Fourth Employment-Based Special Immigrants after September 30, 2008.
 
REQUIREMENTS FOR RELIGIOUS WORKERS

Each petition for a religious worker must be filed on Form I-360. It must also be accompanied by

• Evidence that the organization qualifies as a nonprofit religious organization in the form of an Internal Revenue Service tax-exempt documentation.
• Letter from an authorized official of the religious organization in the United States establishing membership for at least two (2) years in the religious denomination and two years experience as a minister, professional or worker in a religious occupation or vocation immediately preceding the filing of the petition.
• The letter must also certify the individual is authorized to perform the duties of a minister, or is qualified in the religious occupation or vocation.

Applicants who seek to enter the U.S. as a professional or worker in a religious vocation or occupation are eligible for EB 4^th preference classification only through September 30, 2008 and must meet the following requirements:

• Membership in the religious denomination that has had a bona fide nonprofit religious organization in the U.S. for at least two (2) years immediately preceding the date of filing the petition.
• Must also have worked in the religious vocation during the same two-year period.
• Seeking entry into the U.S. solely for the purpose of carrying on a religious vocation or occupation.

FORM I-485 Application to Adjust Status from Nonimmigrant to Employment-Based Permanent Resident
 
WHO MAY FILE:

Any applicant who has an approved I-140 or I-360 or I-526 and for whom an immigrant visas is currently available may file a Form I-485 to apply for permanent residence in the U.S. A new rule adopted in July 2002 by the USCIS states that if a visa is currently available for a preference category, a Form I-485 may be filed concurrently with the Form I-140.

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