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Employment Based Immigration

Employment based immigration is categorized into different groups each having different numerical limitations for visa availabilities. Some of the categories require sponsorship from the employer (petitioner) and some categories need only self-petition from the applicant. Once the particular type of petition is approved by the USCIS, and the visa numbers become current, the applicant (along with the derivatives, if any), may immigrate to the United States, obtain permanent residency and work for the petitioning employer. Below is a summary representation of employment based immigration.

First Preference – Priority Workers (EB-1 Category):

This preference is not subject to labor certification (usually required for employment based cases) and there is no waiting time for visa availability.

1. Persons of Extraordinary Ability:

This category is reserved for persons of extraordinary ability in sciences, arts, education, business or athletics. This category does not require an employer sponsorship. The petition can be self-petitioned, although having an employer is recommended.

USCIS approval pertaining to this category is very limited since only handful of applicants' petitions is approved for them to be able to adjust to a lawful permanent resident status. It is limited to only those who have reached very top of their field of endeavor. In order to show this high standard of achievement a foreign national should provide a lot of credible documentation supplementing their extraordinary abilities. If the applicant does not have a one time major achievement award recognized internationally, then the applicant should provide at least (3) three of the following documentation according to 8 C.F.R. Section 204.5(h)(3):

  1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
  2. Membership in associations in the field for which classification is sought, which requires outstanding achievement of their members, as judged by recognized national or international experts in their disciplines or fields;
  3. Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought;
  4. Participation, either individually or on a panel, as a judge of the work of others;
  5. Evidence of original scientific, scholarly, artistic, athletic or business-related contributions of major significance in the field;
  6. Authorship of scholarly articles in the field;
  7. Display of the alien's work in the field at artistic exhibitions or showcases;
  8. Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation;
  9. High salary or remuneration in relation to others in the field; or
  10. Commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

2. Outstanding Professors and Researchers:

This category is reserved for outstanding professors and researchers having outstanding achievements and recognized internationally in their field of academics. An offer of employment is required for this category and the petition is usually filed and sponsored by a private employer or an educational institution. The applicant must have at least (3) three years of experience in teaching or research in the academic field. The position offered must be for a tenured position or an offer for indefinite duration.

According to 8 C.F.R. Section 204.5(i)(3) in order for the applicant to show international recognition as an outstanding professor and researcher at least two of the following must be shown with documentation:

  1. Receipt of major prizes or awards for outstanding achievement in the academic field;
  2. Membership in associations in the academic field which require outstanding achievements of their members;
  3. Published material in professional publications written by others about the alien's work in the academic field;
  4. Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others;
  5. Evidence of original scientific or scholarly research;
  6. Authorship of scholarly books or articles in the academic field.

3. Multinational Executives and Managers:

This category is reserved for executives and managers who have worked for a foreign company abroad for at least (1) year in the last three years and whom the company desires to transfer to the affiliate or branch company in the United States. This category is similar to an L-1 nonimmigrant visa type, with major difference in that the applicant is issued a Green Card rather than a temporary work period as in the case of L-1.

A job offer by the employer is required and the position offered in the United States shall be managerial or executive. The U.S. employer must show that it was doing business in the United States for at least (1) one year and really need an executive or manager. The U.S. employer must also show that the company abroad is operating.

Second Preference – Members of Professions Holding Advanced Degrees or Aliens of Exceptional Ability (EB-2 Category):

This category is reserved for applicants who hold advanced degrees or their equivalent (e.g. Master's degree) or for applicants who can show that they have exceptional ability in the sciences, arts or business. Labor Certification and offer of employment by employer is required unless the applicant can show that his or her employment is in the National Interest of the United States. There is currently no visa backlog for this category except for nationals from countries of India and China.

Third Preference – Professionals, Skilled and Other Workers (EB-3 Category):

This category is reserved for three groups of people:

  1. Professionals who hold bachelor's degree
  2. Skilled workers with at least two years training or work experience
  3. Other workers with less than two years of training or work experience

Labor Certification and offer of employment by the employer is required. National Interest waiver does not apply in EB-3 category. There is currently visa backlogs applicable to all countries listed in the Visa Bulletin.

Fourth Preference – Special Immigrants (EB-4 Category):

This preference category is reserved for foreign nationals who would like to:

  1. Work in the United States permanently as Religious Workers; or
  2. People who would like to reacquire their U.S. Citizenship.

This category is current on the Visa Bulleting and applicants do not have to wait for visa availability.

Fifth Preference – Employment Creation Investors (EB-5 Category):

This preference is reserved for foreign nationals who would like to invest in the United States a substantial amount of money ($1,000,000 (urban area) or $500,000 (rural area)) and secure job placements for at least 10 employees within the 2-year conditional residency period. These foreign investors will obtain their Green Cards to be able to stay in the United States and manage or direct their business enterprise, if all the immigration paperwork and required documents are satisfactorily filed with the USCIS. Petitions under this category are very detailed and the attorney handling this type of cases should be very detailed and accurate in preparation of the client's paperwork as there are many detailed requirements for the positive outcome of the case. Here is a summary of the requirements for filing of this type of case:

  1. Investment should be made in a new commercial enterprise.
  2. Investment should be in an amount of either $1,000,000 or $500,000 depending on the population size of the place of investment.
  3. Foreign national should be able to show that the funds are already invested or is actively in the process of investment.
  4. Investment might be placed at risk, meaning that there must be shown expenses already incurred towards securing the business enterprise.
  5. Foreign national must show that the source of funds invested is legitimate by showing documents proving the legitimate origination of the funds invested.
  6. Extensive documentation to prove existence of the U.S. enterprise, investment, legitimate source of funds, job creation documents, description of the petitioner's position and qualifications.

Investor in this type of category is given the Green Card on a conditional basis for two years. It is the investor's responsibility to file an appropriate application to remove the conditional status within 90 days before second anniversary of the valid status. In the application the investor must show that the capital is actively invested, that the business enterprise is operational and that 10 full-time jobs are already created or will be created in a reasonable period of time.

 
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Employment Based Immigration - Los Angeles