EMPLOYMENT-BASED IMMIGRATION

There are five main categories of employment-based permanent residency.

FIRST PREFERENCE (EB-1)

There are three sub-categories of the first preference.

EB-1(a): Extraordinary Ability

Applicants must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. The achievements must be recognized in the field through extensive documentation. No offer of employment is required.

EB-1(b): Outstanding Professor and Researcher

Applicants must demonstrate international recognition for outstanding achievements in a particular academic field. At least 3 years of experience in teaching or research in that academic area. Applicant must be entering the United States in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education. Employment offer is needed from the prospective U.S. employer.

EB-1(c): Multinational Executives and Managers

Applicants must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation and must be seeking to enter the United States to continue service to that firm or organization. The employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer. The petitioning employer must be a U.S. employer and must have been doing business for at least 1 year, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed the applicant abroad.

SECOND PREFERENCE (EB-2)

There are also three sub-categories of the second preference:

EB-2(a): Advanced Degree

The job must require an advanced degree and the beneficiary must possess such a degree or its equivalent (a baccalaureate degree plus 5 years of progressively more responsible work experience in the field).

EB-2(b): Exceptional Ability

Beneficiary must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

EB-2(c): National Interest Waiver (NIW)

Applicant or beneficiary seeking a national interest waiver is requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have an “advanced degree” or “exceptional ability” in the sciences, arts or business, and whose employment in the United States would greatly benefit the nation. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.

THIRD PREFERENCE (EB-3)

There are also three sub-categories of the third preference:

EB-3: Professionals

Beneficiary must be able to demonstrate that he or she possesses a U.S. baccalaureate degree or foreign degree equivalent, and that a baccalaureate degree is the normal requirement for entry into the occupation. Beneficiary must be performing work for which qualified workers are not available in the United States. Education and experience may not be substituted for a baccalaureate degree.

EB-3 Skilled Workers

Beneficiary must be able to demonstrate at least 2 years of job experience or training. Relevant post-secondary education may be considered as training. Beneficiary must be performing work for which qualified workers are not available in the United States.

EB-3 Unskilled Workers

Beneficiary must be capable, at the time the petition is filed on his or her behalf, of performing unskilled labor (with less than two years of training) that is not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

FOURTH PREFERENCE (EB-4)

This category includes special immigrant religious workers and other special immigrants.

Ministers and Non-Ministers

Ministers and non-ministers in religious vocations and occupations may immigrate to or adjust status in the United States for the purpose of performing religious work in a full-time compensated position. There is no cap for special immigrant religious workers entering the United States solely for the purpose of carrying on the vocation of a minister. But there is a cap of 5,000 workers for special immigrant non-minister religious worker visa during each fiscal year.

Sunset Date for Non-Minister Religious Workers

President Obama signed Public Law 112-176 on September 28, 2012, extending the non-minister special immigrant religious worker program through September 30, 2015. The law allows these workers to immigrate or adjust to permanent resident by that date. Non-minister special immigrant religious workers include those within a religious vocation or occupation engaged in either a professional or non-professional capacity. The sunset date also applies to accompanying spouses and children of these non-minister special immigrant religious workers. Special Immigrants entering the United States solely for the purpose of carrying on the vocation of a minister, and their accompanying spouses and children, are not affected by this sunset date.

FIFTH PREFERENCE (EB-5)

To stimulate the U.S. economy through job creation and capital investment by foreign investors, it allows a conditional residency for those who, after 11/29/1990, invest $1,000,000 (or under certain circumstances $500,000) in a new commercial enterprises that creates 10 jobs for U.S. workers. All EB-5 investors must invest in a new commercial enterprise.

New Commercial Enterprise

1. Established after Nov. 29, 1990, or
2. Established on or before Nov. 29, 1990, that is
a. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
b. Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

Commercial Enterprise

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
• Corporation
• 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.

Employment Creation

1. 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.

2. 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.

Troubled Business

Where investment only sustains current employees but does not create new full time jobs, it does not meet the jobs requirement unless investment is 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.

Qualified Employee

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

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.

Job Sharing Arrangement

A job-sharing arrangement – whereby two or more qualifying employees share a full-time position it will count as one full-time employment if they combine to work at least 35 hours a week. But two part-time jobs do not count. 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.

Required Minimum Investment Amount

General. 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

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.

Rural Area

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.