Employment Immigration without Labor Certification EB-1, EB-4, EB-5

Foreign born individuals who wish to permanently relocate to the U.S. based on their job skills may be eligible for one of 5 employment based visa preferences. EB-1, EB-2, EB-3, EB-4, and EB-5. These preferences are truly a hierarchy of when and how an immigrant visa may be available based on the value of the skills associated with the preference category and the numbers of immigrant visas allotted to that classification.  Note that EB-2 and EB-3, the 2nd and 3rd preference classifications, will be discussed separately due to their labor certification requirements or waiver of the labor certification, as the case may be.

EB-1 Immigrant Visa Classifications

Individuals with extraordinary abilities, or who are outstanding professors and researchers, or multinational managers or executives may be eligible for the EB-1 visa if they can demonstrate their achievements and satisfy requirements according to federal regulations and UCSIS interpreted criteria.

EB-1-1 [or EB1(A)] Extraordinary Aliens must present extensive documentation to demonstrate extraordinary ability. Documents must show the applicant’s national or international acclaim in any of the following fields: arts, athletics, business, education, sciences. No employment sponsor is required, but 3 of the 10 criteria for establishing extraordinary ability must be met. Alternatively, evidence of a one-time achievement can also qualify an applicant; for example, winning an Olympic Medal, Academy Award, or similar accolade.

EB-1-2 [or EB1(B)] Outstanding professors and researchers have different requirements.  The Applicant needs to establish that he or she is recognized internationally as outstanding in a field of endeavor, has three years of experience in the area of research or academic field, and has an offer of employment for a tenured or tenure track position from a U.S. based institution of higher education;  or have a similar permanent position offer to conduct research with a private employer under certain conditions, and can meet at least 2 criteria to establish outstanding recognition in a specific academic field.

EB-1-3 [or EB1(C)] A Multinational Executive or Manager may also have an immigrant visa available through employment under certain conditions.  Similar to the nonimmigrant classification of L1 International transferee, the US employer must have a qualifying relationship to the outside-the-US entity where the foreign born person has worked as an executive or manager for one year within the three years prior to admission or petition.  Also similar to the L1, the definition of Executive or Manager have distinct and specific parts for the foreign person’s past experience and offered job to allow the immigrant visa.  However, unlike the nonimmigrant L, there is no immigrant visa based on past experience in a specialized knowledge position transferring into an executive/manager position or heading into a specialized knowledge position offered in the US.  If the employer wishes to begin an immigrant visa process for a person who does not have past experience as a multinational executive or managerial or who is not being offered a multinational executive or managerial position, the employer must pursue a labor certification process through the Department of Labor.

An individual petitioning for an immigrant visa within the first preference category may complete the petition on his or her own, or have an employer complete it on his or her behalf depending on the type of EB1 sought and the nature of the position. You can view the Form I-140 here.

EB-4 Special Immigrants

The EB-4 visa is reserved for special immigrants and includes the following types of workers:

  • Religious Workers
  • Broadcasters
  • Iraqi/Afghan Translators
  • Iraqis Who Have Assisted the United States
  • Armed Forces Members
  • Panama Canal Zone Employees

There are other special immigrants who may receive an immigrant visa through the EB4 classification, such as Special immigrant juveniles, returning residents, 15 year employees of US Government or American Institute in Taiwan, certain International Medical Graduates licensed to practice or practicing since 1978, and Retired G-4 or spouses and children of such if G4 is deceased.  These categories are not considered special immigrant workers, but can receive special immigrant visas. They are not discussed in detail herein.  Should a reader need additional information in the above mentioned categories, please seek a consultation.

The employer should generally file the Form I-360 for the applicant, and in each case the qualifying documentation varies according to requirements made specifically for that type of special immigrant. However, in some circumstances the applicant is not required to have the employer petition for them.  It should be noted that the special immigrant petition classification is an employment based petition, so that laws and benefits related to the Child Status Petition Act include these employment based classifications.

EB-5 Investor

EB-5 is a preference classification that allows investors to obtain conditional permanent residence based on investment in the U.S.  The investor must invest in a “new” for-profit commercial enterprises that meet the job creation and minimum capital investment requirements. “New” has a special definition according to pre or post November 29, 1990, especially in terms of being able to restructure or reorganize a business with investment funds and to expand the business in terms of net worth or number of employees.
For the EB-5 investment to succeed, the enterprise must create or preserve at least 10 full-time jobs for U.S. workers within 2 years of the admission or adjustment of the immigrant as a conditional resident. Note, however, the preserving jobs credit is only provided to “troubled businesses” which have a specific definition within the INA. The jobs created must be directly related to the investment in the enterprise, unless the commercial enterprise is associated with a regional center. If the enterprise is associated with a regional center, indirect jobs may count towards the minimum jobs criteria. 

The minimum investment under the EB-5 visa is US$1 million, although in high unemployment or rural areas, the minimum investment is $500,000.   The investor must prove where his or her assets were derived, how they were transferred to US and invested, and complete and maintain full investment through the time it takes to receive conditional residence, continuously through the following two years after admission as a conditional resident, and during the time the Application to Remove the conditions is adjudicated.  The investment must be made without a guaranteed rate of return or plan to sell or receive back invested funds.
The investor must complete the Form I-526, and to remove the condition, Form I-829.

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Employment based Immigration is subject to the quota system. You may view the latest Department of State Visa Bulletin to determine which employment visa classifications are currently available or whether there is a backlog of oversubscribed visas that basically results in a waiting time.


 

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