EMPLOYMENT BASED IMMIGRANT VISAS

Every fiscal year (October 1^st – September 30^th), approximately 140,000 employment-based immigrant visas are made available to qualified applicants.  There are the temporary employment visas such as the H-1B visas, that we talked about recently.   Today we’ll look at immigrant visas for permanent employment.  Employment based immigrant visas are divided into five preference categories and are permanent jobs that provide an Immigrant Visa and Green Card.

For most Employment Based Immigrant Visas, the first steps are a Labor Certification and Filing a Petition.  The applicant's prospective employer or agent must first obtain a labor certification approval from the Department of Labor and then file an Immigrant Petition for Alien Worker, Form I-140.    Persons with extraordinary abilities in the EB-1 category are able to file their own petitions.

EB-1 for Priority Workers with Extraordinary Abilities:   A First Preference applicant must be the beneficiary of an approved Immigrant Petition for Foreign Worker, Form I-140, filed with USCIS.   Labor certification is not required for any of the EB-1 Priority Workers.   There are three sub-groups within this category:

Persons with extraordinary ability in the sciences, arts, education, business, or athletics. Such applicants can file their own Immigrant Petitions for Alien Worker, Form I-140, and no offer of employment is required.

The second group is Outstanding professors and researchers who are recognized internationally.  The prospective employer must be a university or other institution of higher education and must provide a job offer and file an Immigrant Petition for Alien Worker.

The third group of EB-1 visas is for Multinational managers or executives who have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer.   Labor Certification is not required.  The employer must file USCIS Form I-140 Petition for Alien Worker.

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The next categories, EB-2 and EB-3 visas, both require Labor certification.     Labor Certification is a process of proving that there are no US workers who are able, willing, qualified and available for the position being offered. If there are even minimally qualified US workers - then the foreign worker cannot be offered the position on a permanent basis.  To get a Labor Certification, the employer must advertise in local newspapers of general circulation to find a US citizen or permanent resident from the local labor pool.   If a local worker is not found, then he can apply for Labor Certification. 

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EB-2 (Employment Second Preference): Professionals Holding Advanced Degrees and Persons of Exceptional Ability:    A Second Preference visa requires the employer to provide a job offer, obtain Labor Certification and file Form I-140 for alien worker.

There are two subgroups within this category:

Professionals holding an advanced degree (Master’s degree or Doctorate degree), or a bachelor’s degree and at least five years progressive experience in the profession. The job you apply for must require an advanced degree and or its equivalent.

Persons with exceptional ability in the sciences, arts, or business. Exceptional ability means having a degree of expertise significantly above the ordinary in the sciences, arts, or business.

Family of EB-2 Visa Holders:  The spouse and children under the age of 21 may be admitted to the United States in E-21 and E-22 immigrants and the spouse is eligible to file for an Employment Authorization Document (EAD). 

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Employment Third Preference (EB3): Skilled Workers, Professionals, and EW3 Unskilled Workers (Other Workers).     A Third Preference applicant must have Labor Certification and an approved I-140 by the employer.  Spouses and unmarried minor children of professionals and other workers with an EB3 visa may also be eligible to receive an immigrant visa to live in the United States.   There are three groups of EB3’s.

Skilled workers are persons whose jobs require a minimum of 2 years training or work experience that are not temporary or seasonal.

Professionals are members of the professions whose jobs require at least a bachelor’s  degree from a U.S. university or college, or its foreign equivalent degree.

EW-3 Unskilled workers (Other workers) are persons capable of filling positions that require less than two years training or experience that are not temporary or seasonal.  In most cases it is extremely difficult to get approval for unskilled workers because such workers are easily found among US residents.  The jobs of domestic household workers, child care workers, restaurant kitchen staff and similar occupations are not in need of foreign labor.

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EB4: Special Employment Immigrants:   A Fourth Preference applicant must be the beneficiary of an approved Special Immigrant petition (form I-360).     Labor certification is not required for any of the Special Immigrants subgroups.     There are many subgroups within this category.  In addition to Ministers of religion and religious workers, most of the EB-4 visas are given to people who have worked for the US government outside the U.S.

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EB5: Immigrant Investors:  Immigrant Investor visa categories are for capital investment by foreign investors in new commercial enterprises in the United States which provide job creation.   The minimum investment is $500,000.  Successful applicants receive a Conditional Green Card valid for two years.  They can be accompanied by their spouse and children under 21.

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Q.1. What is the difference between these Employment Based visas and the H1-B or L-1 or similar visas?

A.1.  The H1B or L-1 are temporary non-immigrant visas.  The EB visas are permanent visas giving a Green Card to successful applicants.

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Q.2.  What is the most difficult part of the EB-2 and EB-3 applications?

A.2. The employer for EB-2 and EB-3 applicants must show that there are no US workers available locally.

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Q.3. Would an EB-3 petition be a good alternative to an H1-B application?

A.3. If the employer can prove to the Labor Department that there are no qualified US workers available, then the EB-3 would certainly be a good alternative to an H1-B.