EMPLOYMENT-BASED PERMANENT RESIDENCE

In 1990, Congress created a priority system for granting permanent residence to aliens based on employment skills. Annually, 140,000 immigration visas are available for principal aliens who qualify under the following five employment-based ("EB") preference categories:

FIRST "EB-1" Priority Workers; 40,000 visas per year

• aliens of extraordinary ability in the sciences, arts, education, business and athletics
• outstanding professors or researchers
• managers and executives subject to international transfer to the United States (US)
  

SECOND "EB-2"9; 40,000 visas per year

• aliens of exceptional ability in the sciences, arts, or business
• advanced degree professionals
  

THIRD"EB-3" 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, of which 5,000 have been dedicated to adjusters under NACARA)
  

FOURTH "EB-4" Special Immigrants, including but not limited to 10,000 visas per year

• religious workers a maximum of 5000 visas is set aside for religious vocational activities in the US of members of religious denominations that have bona fide nonprofit religions organizations in the US.
  

FIFTH "EB-5" Immigrant Investors 10,000 visas per year

• alien entrepreneurs whose enterprises will directly create 10 or more new jobs in the US; 3000 visas reserved for investors in target employment areas and 300 for Immigrant Investor Pilot Program
  

PROCEDURE

Step 1 Labor Certification

• For detailed summary, see Road to Green Card Through the Alien Labor Certification Process.

In cases where immigration to the US will be based upon a US job offer, the employer is the petitioner and the prospective immigrant is the beneficiary. Labor Department Form ETA-750 (Parts A and B) must be filed by the employer with the state employment service in the state where the intending immigrant will be employed. In most cases where a job offer is involved, the petitioner must document in the ETA-750 submission that qualified US workers are not available, able, or willing to fill the position on which an EB petition is based. The Labor Certification is the document issued by the US Department of Labor to certify that the petitioner has met this standard. Once a Labor Certification is received, a priority date will be issued that will determine when an immigrant visa becomes available. NOTE: Labor Certification is not required for 1^st, 4^th, and some 2^nd EB categories (see discussion below).

Step 2 USCIS Petition

Once the Labor Certification is processed (if required), the employer or self-petitioning alien submits Form I-140 to the USCIS Service Center with jurisdiction over the geographical location where services will be rendered. Upon approval, provided that an immigrant visa is available, the beneficiary can apply for adjustment of status (if present in the US) or apply to a US consulate abroad for an immigrant visa.

Step 3 Consular processing or Adjustment of Status

Aliens abroad who seek to enter the U.S. as EB immigrants will apply to consulates abroad with their supporting USCIS documentation. Aliens already present in the US in nonimmigrant status may submit Forms I-485 (application for adjustment of status) and I-765 (application for work authorization based upon adjustment application) to local USCIS offices.

FIRST PREFERENCE-PRIORITY WORKERS

(1) Aliens with extraordinary ability

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 US to work in the field in which he or she has earned extraordinary status
• INS finds that alien's admission as a permanent resident will substantially benefit the U.S.
  

DOCUMENTATION

Aliens eligible for this category will have demonstrated a major achievement such as an internationally recognized award (e.g. Nobel Price) or three of the following:

• lesser national or international award for excellence in the field of alien's intended US employment;
• membership in association(s) in alien's field that require members to have demonstrated outstanding achievements as judged by acknowledged experts;
• published material about the alien in major professional or trade publications;
• selection of alien to judge others in the same or allied field;
• original contributions of importance in the alien's field;
• publication under alien's name of scholarly articles in professional/trade publications or broadcast media;
• display of alien's work in artistic exhibitions;
• performance of leading roles for distinguished organizations or institutions;
• high salary or level or professional remuneration in relation to others in alien's field;
• commercial success in the performing arts (box office receipts, recordings, videos, etc.)
  

(2) Outstanding Professors and Researches

REQUIREMENTS

• International recognition in area of academic specialty
• 3 years experience in teaching or research (includes graduate or post doctoral work, if qualifying)
• seeks entry for a tenure track teaching or comparable research position (of unlimited duration) at an institution of higher education or private research position for employer of demonstrated research accomplishments that employs more than 3 full-time researches
• evidence of international recognition
  

DOCUMENTATION

International recognition can be demonstrated via evidence of two of the following:

• receipt of major prizes/awards for outstanding achievement
• membership in an association requiring outstanding achievement
• published material in professional publications written by others about applicant's work
• participation as a judge of the work of others
• original scientific research
• authorship of scholarly articles/books in the specialty area
  

(3) Multinational Executives and Managers

REQUIREMENTS

SECOND PREFERENCE

SPECIAL FEATURES

• Labor certification required unless specialty occupation is pre-certified under the Labor Department's Schedule A.
• A petition submitted with Form ETA-750B and evidence supporting a national interest waiver will exempt the petition from the requirements of a job offer and labor certification.
  

REQUIREMENTS

Aliens holding advanced degrees

For a petition to qualify under the second preference as an advanced degree professional, the position to be filled by the beneficiary must require an advanced degree or the equivalent. Adjudication of EB-2 petitions based on advanced degrees will first examine the requirements of the position (i.e. whether an advanced degree is required) and then to the beneficiary's credentials vis a vis that position. Although the position may require an advanced degree, the beneficiary may be considered qualified if he or she has a bachelor's degree plus five years or progressive experience relevant to the position.

Aliens of exceptional ability

To demonstrate exceptional ability in the arts, sciences, or business, a petition must include a minimum of three of the following types of documentation relating to the field of exceptional ability:

• Official academic record demonstrating that alien has earned degree(s)
• Statement(s) from employer(s) demonstrating at least ten years of full-time experience
• License or certification for professional practice
• Salary or history of remuneration for services commensurate with that of a professional
• Membership in professional association(s)
• Recognition by peers or government/professional entities for achievements and contributions
  

THIRD PREFERENCE

REQUIREMENT

FOURTH PREFERENCE

REQUIREMENTS FOR RELIGIOUS WORKERS

• Membership for at least 2 years immediately preceding the application for permanent residence in a religious denomination having a bona fide, nonprofit, religious organization in the US, and

• Seeking admission to the US to carry out vocation as a minister

• Note: Prior to October 1, 2000, applicant may seek to enter based upon a professional capacity in a religious vocation/occupation or to work for a religious organization or affiliate in a religious vocation/occupation, provided that the applicant has been carrying on such vocation/occupation continuously, within or outside of the US, for a 2 year period.
  

FIFTH PREFERENCE

SPECIAL FEATURES

• This classification allows conditional residency for persons who invest $1,000,000, or $500,000 (under limited circumstances) in a new commercial enterprise that employs ten (10) US citizens or authorized immigrant workers full- time. Investors must manage the business investment on a day-to-day basis or through policy formulation.
• Immigrant investors whose petitions to remove conditions are approved will be issued Permanent Residence Cards ("green cards"). In cases where the enterprise has been abandoned or the relationship between the immigrant investor and the qualifying investment terminated or changed so that it no longer meets qualifying standards, permanent residence will be denied and the alien(s) must department the US.
  

REQUIREMENTS for Qualifying Investors

• The alien investor must make a qualifying investment using personally owned and legally obtained assets or indebtedness secured by personal assets (i.e. not secured by the qualifying commercial enterprise).
• The alien investor must be engaged in management of the enterprise, either through daily managerial control or through policy formulation as a corporate officer, director, or partner.
• Each multiple alien investor in the same enterprise will qualify if he or she meets the minimal capital and job creation requirements. In cases where not all multiple investors seek to immigrate to the US based on the investment, the job creation requirement can be met by those investors who seek to immigrate (based on the joint investment) by apportioning the total number of jobs created among the immigrating investors rather than among all investors.

• Note: This apportionment among joint investors does not apply to the capital requirement.
  

REQUIREMENTS for Qualifying Investments

• Fifth preference investments in new commercial enterprises must benefit the US economy and create full-time employment for at least ten work-authorized employees, excluding the alien entrepreneur, his or her immediate relatives, and persons in nonimmigrant status. Saving ten jobs may qualify if the qualifying investment is in a troubled business.
• The capital investment must be $1,000,000 in high employment areas and $500,000 in targeted employment areas. The capital may consist of cash, equipment, inventory, other tangible property, and/or easily convertible cash equivalents.
• The only location criteria apply to $5,000,000 investments in targeted employment areas, which include rural areas identified by the US census or OMB and areas certified by a state government to be experiencing average unemployment of at least 150% of the national average.
  

Pilot Program Investments

• To qualify as a basis for fifth-preference immigration as part of the pilot program, investments must be in approved regional centers in the US.
• A regional center is any public or private economic unit established by the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment, which benefits a particular geographic region of the US. As of June 1, 1996, fourteen regional centers had been designated by USCIS.
• With respect to pilot program investments, the job creation requirement may be calculated via indirect methodologies such as multiplier tables, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported by the new enterprise, and other economically or statistically valid forecasting devices that indicate likelihood of increased employment to meet the fifth preference job creation standard.