EB-1 and EB-2 Green Cards

EB-1 and EB-2 Employment Based Immigration Visas.

There are two types of employment-based immigration visas – EB-1 and EB-2.

EB-1

The first preference is known as EB-1 and this includes foreign nationals whom are most desired by the United States.  There are three sub-categories under EB-1:

  • EB-1A:  Extraordinary Ability in the sciences, arts, education, business or athletics through sustained national or international acclaim. Achievements must be recognized through extensive documentation of either a one-time achievement (such as  Pulitzer, Oscar or Olympic Medal) or meeting 3 of 10 criteria. No offer of employment is required.

Criteria for Demonstrating Extraordinary Ability

First, USCIS will determine if the applicant has evidence to prove he/she meets 3 out of the 10 listed below.   If yes, the USCIS will secondly determine if the evidence proves that it is more likely than not that the applicant has sustained national or international acclaim, and more likely than not that the applicant is among the few at the very top of his/her field of endeavor.

 

Here are the 10 criteria considered by USCIS in the initial stage of the adjudication:

  1. Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
  2. Evidence of your membership in associations in the field which demand outstanding achievement of their members
  3.  Evidence of published material about you in professional or major trade publications or other major media
  4.  Evidence that you have been asked to judge the work of others, either individually or on a panel
  5.  Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  6.  Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
  7. Evidence that your work has been displayed at artistic exhibitions or showcases
  8.  Evidence of your performance of a leading or critical role in distinguished organizations
  9.  Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
  10.  Evidence of your commercial successes in the performing arts
  • EB-1B Outstanding Professors and Researchers must demonstrate international recognition with at least 3 years of experience and must be entering the U.S. in order to pursue a tenure track or comparable position at an institution of higher education, or have an offer of permanent employment (meaning no specific ending date) from a private or public research-based company.  Documentation must meet at least two of the following criteria:

Criteria for Demonstrating one is an Outstanding Professor or Researcher

  1. Evidence of receipt of major prizes or awards for outstanding achievement
  2.  Evidence of membership in associations that require their members to demonstrate outstanding achievement
  3. Evidence of published material in professional publications written by others about the alien’s work in the academic field
  4.  Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
  5.  Evidence of original scientific or scholarly research contributions in the field
  6.  Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field
  • EB-1C Multinational Manager or Executive must have been employed by an entity outside of the U.S. for at least one year of the preceding three years prior to the fling of the petition, and must be seeking to enter the U.S. to continue service to that foreign entity or any U.S. affiliate, subsidiary or parent of the foreign entity.  Employment both outside and inside the U.S. must have been/be in a managerial or executive capacity.

EB-2

Employment-based, second preference visas are for members of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability. Generally, petitions must be accompanied by an approved PERM labor certification from the Department of Labor.

  • Advanced Degree: The job must require an advanced degree and the foreign national must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field) and provide documentation.
  • Exceptional Ability: The foreign national 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.” At least 3 of the enumerated criteria must be met.
  • National Interest Waiver: Aliens seeking a national interest waiver (NIW) are requesting that the Labor Certification be waived because it is in the interest of the United States. NIW requires the foreign national applicant to prove he/she has already made an impact that benefits the people of the United States, to a degree higher than the norm, or higher than one’s peers.  This past impact must be strong enough to indicate the likelihood of future benefits to the American people.


PERM Labor Certification

Most people who want to immigrate to the United States—reside permanently—through their job or employment are required to first obtain a PERM Labor Certification from the U.S. Department of Labor (“DOL”) stating that they will not be displacing a U.S. worker.  This Certification must be obtained by the employer prior to the employer filing an immigrant visa petition with the U. S. Citizenship and Immigration Services.

Step One: Certification by the Department of Labor

 

The PERM labor certification process is an application from a U.S. employer to the DOL stating that after having conducted certain prescribed recruitment efforts, the employer can state under oath that there are no U.S. workers ready, willing, or minimally qualified to accept the offered position at the prevailing wage for the geographic area of intended employment.  The PERM application involves a test of the local labor market as opposed to real world recruiting efforts.  Under the PERM process, the employer must place two local newspaper print ads, open a 30-day job order with the state workforce agency, and post the job announcement at the work site for 10 business days—and then also must undertake three additional recruitment steps from the following menu of options:

• Employer’s website

• Job search website other than the employer’s website

• On-campus recruiting

• Campus placement office

• Trade or professional organizations

• Private employment firms

• Employee referral program with incentives

• Job Fairs

• Local and ethnic newspapers

• Radio and television advertisements

None of the evidence of recruiting is submitted with the online PERM application that is sent to DOL.  This back-up documentation is kept on file.  The DOL does have the authority to audit applications and request this documentation which must be provided within 30 days of any request.

 

The DOL takes anywhere from 2-8 months to adjudicate a PERM application, and longer if there is an audit.

 

Step Two: Immigrant Visa Petition

Once the PERM labor certification application has been certified by the DOL, the second step in the permanent residency process is the immigrant visa petition (also commonly known by its form number—the Form I-140).  The immigrant visa petition is filed with USCIS and to be approved, must establish that the foreign national qualifies for the position as described in the labor certification.  Education credentials and letters confirming previous experience must be presented as supporting evidence of the petition.  It is also required that the employer provide evidence to prove it is able to pay the prevailing wage offered in the PERM application, starting from the day the PERM application was filed with DOL right through the time of filing.  An original version of the approved labor certification must also be included with the immigrant visa petition to show USCIS that the DOL has already confirmed unavailability of U.S. workers thus giving the employer permission to pursue the immigrant visa petition on behalf of a foreign national.   It is critical that the Immigrant Visa Petition be filed with USCIS within 180 days of the PERM labor certification application being certified by DOL.

While processing times vary for different parts of the country, the average time frame for immigrant visa petitions is 8 – 10 months.  Premium Processing is available from USCIS for an additional $1225 filing fee, and this will provide for a 15-day turnaround.

 

Step Three: Application for Permanent Residence

 

The final step in the process is the formal application for permanent residence.  Before the permanent residence application can be filed, the visa number quota system must be current for the nationality and employment-based category.  Once visa numbers are current, the application can be filed either with the U.S. consulate in the foreign national’s home country or, if the foreign national is in the U.S. in lawful status, the application may be filed with USCIS. The latter option is commonly referred to as “adjustment of status” or sometimes referred to by the form used for the application—the Form I-485.   It is at this final stage in the permanent residency process where immediate family members (spouses and unmarried children under age 21) are eligible to join the process and file applications for permanent residence.  USCIS policy allows the filing of the adjustment application at the same time as the immigrant visa petition—only if the priority date is current—which can save on overall processing times.

 

In most cases, foreign nationals and employers prefer the adjustment of status option because it does not involve coordinating a trip outside the U.S.  Filing the adjustment of status also allows immediate family members, who may not have been authorized for employment previously, to apply for a work authorization card.

 

While the adjustment of status application is pending, the applicants must ensure that they have proper travel and/or employment verification documents.  Subject to the exception discussed below, all applicants for adjustment of status who need to travel outside the U.S. while the adjustment application is pending must also apply for a special travel document known as “Advance Parole.”  The Advance Parole travel document provides notice to an immigration inspector that the foreign national has an application for permanent residence pending in the U.S. and wishes to continue to pursue that application upon re-entry into the country.   With the exception of those in H or L status, failure to travel internationally with the Advance Parole results in abandonment of the adjustment application, and the adjustment application would have to be re-filed.