understand eB 1-5
First: Priority Workers
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability
Third: Skilled Workers, Professionals, and Other Workers
Fourth: Certain Special Immigrants
Fifth: Employment Creation
An Alien of Extraordinary Ability, or EB-1A, classification applies to aliens who can demonstrate that they “have risen to the very top of their field of endeavor.” Such candidates may apply for EB-1A petition without a labor certification or a job offer (i.e. an employer’s sponsorship). Any alien living in the U.S. or abroad may apply if he/she meets the following requirements:
- Alien has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim.
- Alien’s achievements have been recognized in the field through extensive documentation.
To establish that the alien is a top member within his/her respective field, evidence of receipt of an internationally recognized award such as the Nobel Prize or an Academy Award is accepted. However, in the absence of an internationally recognized award, the alien can establish him/herself as an Alien of Extraordinary Ability by providing documentation of any three (3) of the following:
- Receipt of lesser nationally or internationally recognized prizes or awards for excellence.
- Membership in associations which require outstanding achievements of their members, as judged by recognized national or international experts in their fields.
- Published material in professional/major trade publications or major media about the alien and relating to the alien’s work field.
- Participation as a judge (individually or as a part of a panel) evaluating the work of others.
- Original scientific, scholarly, or artistic contributions of major significance.
- Authorship of scholarly articles in professional journals or other major media.
- Artistic exhibitions/shows.
- Leading role within an organization/establishment with a distinguished reputation.
- High salary/compensation for services in comparison to others.
- Commercial success within the performing arts, as shown by either box office receipt figures or cassette, compact disk, video, or DVD sales figures. The alien must also show that his/her admittance into the United States will substantially benefit the United States in the future.
An “Outstanding Researcher or Professor” EB-1B immigrant visa is for aliens who are internationally recognized as outstanding in a particular scientific or scholarly field. Unlike self-petitioned EB-1A cases, EB-1B cases are employer sponsored. This means the petitioning employer must demonstrate that the alien has outstanding ability as a researcher or professor and has a permanent job offer from the employer. The outstanding researcher/professor alien must have the sponsorship of his/her employer throughout the petitioning process. The employer is the petitioner and the outstanding researcher/professor is the beneficiary for the EB-1B process.
There are three (3) main requirements for someone seeking a petition as an “Outstanding Researcher/Professor”, including:
- International recognition for being outstanding in a specific academic field;
- At least three years of relevant research or teaching experience: Research or teaching experience obtained while in pursuit of an advanced degree, such as a Ph.D., can be counted toward the three year requirement, but only if the alien has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. The alien must document his or her work history with letters from current and/or former employers describing work duties and years of employment; and
- A job offer for a permanent research position or a tenured or tenure-track teaching position from the sponsoring employer: Generally, the job offer is given by a university or other similar academic or scientific institution, but it can also be offered by a private employer. If the offer is from a private employer, the employer must have at least three full-time researchers along with accompanying documentation supporting their accomplishments within the field.
As with all employment-based first preference petitions, no Labor Certification is required to obtain an EB-1B immigrant visa. However, the person seeking permanent resident status on the basis of an EB-1B Outstanding Researcher/Professor classification must have the requisite job offer with the sponsoring employer that is filing the petition on the alien’s behalf.
To be recognized internationally as an Outstanding Researcher or Professor in one’s field requires at least two (2) of the following types of evidence:
- Receipt of major prizes or awards for outstanding achievement.
- Membership in associations which require outstanding achievements of their members.
- Published material in professional publications written by others about the alien’s work (more than merely citing the alien’s work).
- Participation as a judge (individually or as a part of a panel) evaluating the work of others in the same field or concentration.
- Original scientific, scholarly, or artistic contributions in the field.
Evidence of authorship of scholarly books/articles in journals with an international circulation.
The EB-1C immigrant category is among the other various visas in the First Preference category. A First Preference Immigration Petition (EB-1) is an employment-based petition for permanent residence reserved for those who are among the most able and accomplished in their respective fields within the arts, sciences, education, business, or sports. Immigrant visa numbers are immediately available under the EB-1 category. The first preference category is allotted 40,000 annual immigrant visas. To obtain an EB-1 status, the beneficiary may apply for Adjustment of Status, if they are already in the United States, or through consular processing at a U.S. consular office abroad.
- The EB-1C visa is a good way for small or start-up overseas companies to expand their business and services to the United States. This is advantageous to smaller companies because its allows for the transfer of a highly proficient manager or executive employee who has direct knowledge of the company’s operations, allowing the setup of a new branch in compliance with the goals and objectives of the company’s main office.
- The Multinational Managerial or Executive EB-1C petition allows international companies to transfer top-level executives and managers to the U.S. as permanent residents.
Requirements for the EB-1C Employer:
- The company must have a qualifying relationship with a foreign company, such as a parent company, branch, subsidiary, or affiliate. These are collectively referred to as qualifying entities.
- The company must conduct business as an employer in the United States and in at least one other country directly or through a qualifying organization in the regular, systematic, and continuous provision of goods or services.
- The company must have been in existence in the United States for at least one year.
Requirements for the EB-1C Employee:
The EB-1C candidate must have been employed for one year within the past three years by the overseas affiliate, parent, subsidiary or branch of the U.S. employer and they must work in the United States in a managerial or executive capacity.
The managerial capacity requirement is met if the alien can prove that he or she personally:
- Manages the organization, department, component or function;
- Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision or the organization;
- Has the authority to hire and fire and make personnel decisions; and
- Exercises direction over day-to-day operations of the activity or function.
The executive capacity requirement is met if the alien can prove that he or she primarily:
- Directs management of an organization, major component, or function;
- Establishes goals and policies;
- Exercises wide latitude in discretionary decision-making; and
- Receives only general supervision from higher executives, the board of directors, or stockholders.
The petition can be filed in this category if the job requires an advanced degree (beyond bachelor’s degree such as Master’s degree or Ph.D.) and the alien has such a degree or the equivalent (Bachelor’s degree plus five years of progressive experience in the profession. Also called BS+5.) The degree may be from U.S. or equivalent degree from a foreign country. If applying by BS+5, the experience letters from former employers showing that the alien has at least 5 years of progressive experience in the specialty after the bachelor’s degree are required. The experience from the current employer CAN NOT be used unless that experience is for a different job (different job duties, promotion to manager etc.) than for the job for which the petition is being filed.
Following documents must be filed with the petition:
- Approved labor certification, or a request for a waiver of a job offer because the employment is deemed to be in the national interest, with documentation provided to show that the beneficiary’s presence in the U.S. would be in the national interest.
- An official academic record showing that the alien has a U.S. advanced degree or an equivalent foreign degree, or an official academic record showing that the alien has a U.S. bachelor’s degree or an equivalent foreign degree and letters from current or former employers showing that the alien has at least 5 years of progressive post-bachelor experience in the specialty.
Aliens who qualify under this classification are the ones “who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States”.
Exceptional ability means having a degree and expertise significantly above that normally found within the field. Here the standard is “exceptional” and NOT “extraordinary” which comes under EB1.
Following documents must be filed with the petition:
Approved labor certification, or a request for a waiver of a job offer because the employment is deemed to be in the national interest, with documentation provided to show that the beneficiary’s presence in the U.S. would be in the national interest.
Documentation of three of the following:
- An official academic record showing that the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability.
- Letters from current or former employers showing that the alien has at least 10 years of full-time experience in the occupation for which he/she is being sought;
- A license to practice the profession or certification for a particular profession or occupation.
- Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability.
- Evidence of membership in professional associations.
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.
If the above standards don’t readily apply to the alien’s occupation, comparable evidence may be submitted to establish the alien’s eligibility.
A National Interest Waiver (NIW) petition falls into the employment-based immigration, second preference (EB2) category (As known as EB2 NIW). Normally, a permanent job offer, and an approved labor certification are pre-requisites to file an employment-based, second preference immigration petition. However, a National Interest Waiver (NIW) petition requests that the labor certification requirement be waived for the sake of the “national interest of the United States;” thus, allowing an applicant to apply for an NIW immigration petition without a labor certification or a job offer from a U.S. employer.
First, to be eligible to file an NIW petition, a beneficiary or applicant must have an “advanced degree” or “exceptional ability” in the sciences, arts or business. The beneficiary must also persuasively demonstrate that he/she seeks employment in an area of substantial intrinsic merit to the U.S., that the benefit from the candidate’s proposed activity will be national in scope, and that the requirement of a Labor Certification for the candidate will adversely affect the national interest. Each NIW case is adjudicated on its individual merits, but the burden of proof is always on the applicant or beneficiary to establish that exemption from the labor certification will be in the national interest of the U.S.
For an NIW, even if the beneficiary has no employer, he/she may file an NIW petition on behalf of himself/herself. A U.S. employer may also file an NIW petition on behalf of the beneficiary.
The occupations that qualify for a National Interest Waiver are not defined by statute. However, each of these three requirements must be met to qualify for an NIW.
- Work in an area of “substantial intrinsic merit” means work in a field that is valuable to the national interest of the U.S. Research in any scientific field, for example, can be said to have substantial intrinsic merit to the national interest of the U.S. Likewise, a sociologist studying demographic trends relating to the 2010 U.S. Census can argue that she seeks work in an area of substantial intrinsic merit; or an educational policy expert can show that his field has substantial intrinsic merit due to its capacity to improve society through education. This criterion is not difficult to meet.
- The applicant’s work, if successful, benefits the U.S. nationally in scope, means that an applicant’s work cannot have merely a limited regional impact. An applicant who has published their research can always show that their work has a national scope since academic publications are disseminated nationally and internationally. In the absence of publications, an applicant can show that the impact of their work is national in scope. For example, a petroleum engineer can argue that her work impacts the entire U.S. in terms of energy supply and refinery safety.
- National Interest would be adversely affected if a Labor Certification were required for the alien. USCIS interprets this to mean that the benefit of an applicant’s work to the U.S. is so great as to outweigh the nation’s inherent interest in protecting U.S. workers by requiring aliens to undergo the Labor Certification process. This is the most difficult requirement of the three to satisfy; therefore, we will discuss this in more detail below.
PERM, shorthand for Program Electronic Review Management System, was initiated by the Department of Labor to process labor certifications on behalf of U.S. employers looking to hire alien employees. The purpose of this process is to show that:
- There are not sufficient U.S. workers able, willing, available, and minimally qualified at the time and place of an alien’s entry; and
- The alien will not displace U.S. workers or adversely affect the wages or working conditions of U.S. workers. This is established by demonstrating that no minimally qualified, able, and willing U.S. worker is available.
This category is potentially more competitive that EB-1 but in a different way. Though EB-1 visas are attractive to the best, brightest, and most accomplished in their field, the number of people eligible for an EB-1 is considerably smaller than those for an EB-3. As a result, this category has a very significant backlog no matter which country the foreign national is from.
The Third Preference employment-based visa category is for other professionals, skilled workers, and other workers who fit into one of the following three sub-categories:
- skilled workers with at least two (2) years’ experience;
- professionals with a bachelor’s degree (or foreign degree equivalent) that is required for the job position; or
- other workers with less than two years’ experience that is required for the position.
The Employment-Based Fourth Preference (EB-4) category is a pathway to US permanent resident status for religious workers and other special immigrant workers who are employees of the U.S. government, Iraqi & Afghani translators in the U.S. armed forces, certain physicians, and others as listed below. Depending on the category, applicants may be self-petitioning or be required to have an employer petition on their behalf.
Who is eligible?
- Religious Workers
- Iraqi/Afghan Translators (Capped at 50 per year)
- Iraqis who have assisted the US
- International Organization Employees
- Physicians who have worked for the US government abroad or domestically
- Armed Forces Members
- Panama Canal Zone Employees
- Retired NATO-6 employees, or their surviving spouses & children
Requirements For Intending Immigrant
- Evidence that intending immigrant has been a member of the denomination for 2 years immediately prior to petition filing. Can be: religious certificates, ordinations, acceptance into the denomination, courses & education completion in the organization, transcripts, etc.
- Evidence of the intending immigrant’s religious background, such as: certificates of ordination, or acceptance as a minister or related religious position.
- If worker will be financially self-supporting, evidence of nature of position as to why it is not salaried, including job duties, and evidence of financial ability for worker to support themself (bank records, pay stubs, etc) is needed.
- Evidence that the intending immigrant has been employed full-time by the same religious denomination in a religious occupation for 2 years immediately prior before filing.
Requirements For Non-profit Religious Organization
- Proof of tax exempt status, usually IRS 501(c)(3) letter;
- Proof of salaried or non-salaried compensation. Can be budget, proof of past compensation for similar position, evidence of room & board provided, W-2s, etc. If room & board will be provided as part of the compensation, documentary evidence is needed to demonstrate the organizations intent & ability to provide it.
Attestation from authorized religious official that: the religious organization is a bona fide non-profit; the intending worker has been a member of the organization for at least 2 years; the number of members of the employer’s organization; job description & number of employees at the job site; number of workers holding R-1 or special immigrant status that have worked for the organization over the past 5 years; number of R-1 or special immigrant petitions filed by the organization for the past 5 years; job title offered to intending worker; details of salaries or non-salaried compensation; that the intending worker will work 35 hours per week; the specific location of the intending employment; and that the intending worker will not engage in employment outside the religious organization.
USCIS administers the Immigrant Investor Program, also known as “EB-5,” created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot immigration program first enacted in 1992 and regularly reauthorized since, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.
- All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise:
- Established after Nov. 29, 1990, or
- Established on or before Nov. 29, 1990, that is:
- Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
- Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs
Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:
- A sole proprietorship
- Partnership (whether limited or general)
- Holding company
- Joint venture
- Business trust or other entity, which may be publicly or privately owned
This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.
Note: This definition does not include noncommercial activity such as owning and operating a personal residence.
Job Creation Requirements
Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.
Create or preserve either direct or indirect jobs:
- Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.
- Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.
Note: Investors may only be credited with preserving jobs in a troubled business.
A troubled business is an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20 percent of the troubled business’ net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.
- A qualified employee is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.
- Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the Immigrant Investor Pilot Program, “full-time employment” also means employment of a qualifying employee in a position that has been created indirectly from investments associated with the Pilot Program.
- A job-sharing arrangement whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions or full-time equivalents even if, when combined, the positions meet the hourly requirement per week. The position must be permanent, full-time and constant. The two qualified employees sharing the job must be permanent and share the associated benefits normally related to any permanent, full-time position, including payment of both workman’s compensation and unemployment premiums for the position by the employer.
Capital Investment Requirements
Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.
- Note: Investment capital cannot be borrowed.
- The minimum qualifying investment in the United States is $1 million.
- Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.
Targeted Employment Area (TEA)
- A targeted employment area is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate.
- A rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.