This page will discuss the three employment-based immigration options:  first preference, or EB-1, for priority workers, second preference, or EB-2, for members of professions holding advanced degrees or individuals of exceptional ability, and third preference, or EB-3, for professionals and skilled workers.

The law on employment-based immigration is codified in INA of 1952.  To obtain any of the above-mentioned immigrant statuses, the petitioner must demonstrate that the foreign worker is one of the best in his field of expertise or that there are no American workers who are able, willing, available and qualified to fill the position.

EB-1 FIRST PREFERENCE—PRIORITY WORKERS

Statutory Authority.  Section 203(b)(1)of the INA allocates 28.6 percent of the total number of employment-based immigrant visas per year to priority workers in the three EB-1 subcategories:  workers of extraordinary ability, outstanding professors and researchers and multinational executives and managers.

When evaluating whether a worker qualifies for any of the EB-1 subcategories, the EB-2 category, which is for individuals of exceptional ability in the sciences, arts or business under INA §203(b)(2); and workers of exceptional ability in the sciences, visual or performing arts under Schedule A, Group II, codified at INA §212(a)(5)(A)(ii)(II) should also be considered. These alternatives are discussed below.

A.         Aliens of Extraordinary Ability

Per Section 8 CFR § 204.5(h)(2), extraordinary ability signifies that the individual has risen to the very top of his field of endeavor, whether it be in the sciences, arts, education or business.  In addition, his extraordinary ability has been recognized through extensive documentation.  A single achievement, such as receipt of a major, internationally recognized award like a Nobel or Pulitzer Prize satisfies the requirement set forth in 8 CFR § 204.5(h)(3).  If the applicant utilizes less notable awards as proof of eligibility, he must provide documentation evincing that it compares favorably to more prestigious ones.

Since very few applicants qualify for extraordinary-ability status by dint of the most prestigious of awards, such as the aforementioned Nobel Prize, the regulations provide for alternative evidence if the worker has not received a single, internationally recognized award.  To satisfy the alternative requirements, the alien still must demonstrate a sustained period of recognition on either a national or international level.  Moreover, the petition must include persuasive documentation in at least three of the following areas:

1. receipt of lesser nationally or internationally recognized prizes or awards;
2. membership in associations that demand outstanding achievement as judged by recognized national or international experts;
3. published material about the alien in professional or major trade publications or other media;
4. evidence that the alien is a judge of the work of others in the field;
5. evidence of the alien’s original contributions of major significance to the field;
6. authorship of scholarly articles;
7. display of the alien’s work at artistic exhibitions;
8. evidence the alien has performed in a leading or critical role for organizations of distinguished reputations;
9. evidence that the alien commands high remuneration in relation to others in the field; or
10. evidence of commercial success in the performing arts.

If the above criteria do not apply, 8 CFR § 204.5(h)(4) allows for “other comparable evidence”.  In preparing this type of application, our office always considers the applicant’s background and work in the United States to select either the category of extraordinary ability or that of outstanding researcher or professor since they require similar evidence.  Sometimes, it is recommended to file petitions for all available categories.  Section 203(b)(1)(A)(iii) of the INA requires that the applicant’s work will “…substantially benefit prospectively the United States.”  Furthermore, the applicant’s profession must be in the arts, sciences, business, education or athletics.

Filing Procedure.  The alien or petitioning employer must file an immigrant petition for alien worker on Form I-140 with USCIS service center having jurisdiction over the alien’s place of future employment.  Each service center lists detailed documentary requirements for this petition.  At the very minimum, the petition should contain the evidence in support of extraordinary ability discussed above.  It is important to note that aliens of extraordinary ability are not required to have a job offer or obtain a labor certification from the DOL.

B.         Outstanding Professors and Researchers

To qualify as an outstanding professor or researcher, INA § 203(b)(1)(B) requires the foreign national to be internationally recognized as outstanding in his academic field; have a minimum of three years of experience in teaching or research in that field; and enter the United States in a tenured or tenure-track teaching position at a university or other institution of higher education.  The alien may also work in a comparable research a university or other such institution as well as with a private employer under certain circumstances that can be determined on a case-by-case basis.

To qualify for the status of outstanding professor or researcher, the position must be permanent, as defined at 8 CFR §204.5(i)(2).  This definition comprises tenured and tenure-track positions for indefinite or unlimited duration with the expectation of continued employment.  Please note that an offer of employment of indefinite duration, but terminable at will, likely will satisfy the requirement of permanent employment.

As noted above, the employer need not be a university or educational institution; it can be a private company.  However, to apply for this visa category, the company must employ at least three full-time researchers.  The private employer also must have documented accomplishments in an academic field.

Required Experience.  The outstanding professor or researcher must have at least three years of experience in pre-advanced-degree research gained.  However, any combination of teaching or research totaling three years will serve to meet the experience requirement.  The law does not require a doctorate degree in order to qualify for the position.  Both the degree and research must be recognized as outstanding.  In addition, pre-degree teaching experience is acceptable if the individual acquired the degree and had full responsibility for the course.  Also, any experience gained with the petitioning employer will qualify.  .

Requirements for International Recognition for Outstanding Achievements.  The outstanding professor or researcher must satisfy at least two of the following criteria:

1. Receipt of major prizes or awards in the field;
2. Membership in associations that require outstanding achievements;
3. Published material in professional journals written by others about the alien’s work;
4. Participation as a judge of the work of others in the same or an allied field;
5. Original scientific or scholarly research contributions to the field; or
6. Authorship of scholarly books or articles in journals with international circulation.

Section 8 CFR §204.5(i)(3)(i) requires that the petitioning employer provide evidence that the beneficiary is internationally recognized in his academic field.  USCIS accepts that the beneficiary may well be stronger in one evidentiary area than another, but the evidence must indicate that the applicant fits the overall classification.  The employer must petition on Form I-140 since the applicant cannot submit a petition on his own.  If the applicant changes employment, the new employer must file another petition on Form I-140.

C.         Certain Multinational Executives and Managers

Multinational managers and executives who transfer to the same company in the United States may qualify for EB-1 status.  Pursuant to INA § 203(b)(1)(C), a multinational manager or executive may qualify for priority-worker status if he has been employed outside the United States in a managerial or executive capacity for at least one of the three years immediately preceding the filing of the petition, or, in the case of a foreign worker presently in the United States, one of the three years preceding entry to the United States as a nonimmigrant.  Furthermore, 8 CFR § 204.5(j)(3)(i)(A) and (B) require the qualifying employment to have been outside the United States and in a managerial or executive capacity.  The beneficiary must have worked either for the same employer or an affiliate or subsidiary thereof.  Also, the foreign worker must work in an executive or managerial capacity in the United States.  Finally, the American employer must have been in business in the United States for at least one year.  According to 8 CFR § 204.5(j)(2), business means “regular, systematic, and continuous provision of goods or services by a firm, corporation, or other entity and does not include mere presence of an agent or office.”

Qualifying Multinational Relationship.  The petitioner must be an American employer that is an affiliate or subsidiary of the firm, corporation or other legal entity that employed the alien abroad, as required 8 CFR § 204.5(j)(3)(i)(C).  Further, 8 CFR § 204.5(j)(2) defines an affiliate as one of two subsidiaries that is owned or controlled by the same parent, individual or group of individuals, as long as each owns and controls approximately the same share.  The term “affiliate” also includes certain international accounting firms that market their services under an internationally recognized name.

Managerial or Executive Capacity.  The beneficiary must possess qualifying experience and be offered a managerial or executive position in the United States.

Managerial Position.  According to 8 CFR § 204.5(j)(2), the managerial position has the following duties:

1. management of the organization or a department, subdivision, function or component thereof;
2. supervision and control of the work of other supervisory, professional, or managerial employees or management of an essential function within the organization, department or subdivision thereof;
3. authority to hire and fire as well such functions as promotion and leave authorization.  If no other employee is directly supervised, then the functions must be at a senior level within the organizational hierarchy or with respect to the function managed; and
4. exercise of discretion over the day-to-day operations of the activity or function for which the employee has authority.

The beneficiary does not need to manage staff.  Management of one of the key functions of the company is sufficient.  Further, 8 CFR § 204.5(j)(4)(i) states that first-line supervisors, even if directly managing the work of subordinate employees, do not meet the definition of managerial capacity unless those supervised are professionals.

Executive Position.  According to 8 CFR § 204.5(j)(2), an executive position encompasses:

1. direction of the management of the organization or a major component or function thereof;
2. establishment of the goals and policies of the organization, component or function;
3. exercise of a wide latitude in decision making; and
4. general guidance or direction from high-level executives, the board of directors or stockholders of the organization.

EB-2 SECOND PREFERENCE—MEMBERS OF PROFESSIONS HOLDING ADVANCED DEGREES OR INDIVIDUALS OF EXCEPTIOANAL ABILITY IN THE SCIENCES, ARTS OR BUSINESS

Statutory Authority.  Section § 203(b)(2)(A) of the INA allocates a certain percentage of employment-based immigrant visas to EB-2, second-preference workers category.  Two categories comprise the EB-2 classification, specifically, workers who are members of the professions holding advanced degrees or their equivalent, and those who, because of their exceptional ability in the sciences, arts or business, will substantially benefit prospectively the national economy, cultural or educational interests or welfare of the United States.

A.         Members of Professions Holding Advanced Degrees

Pursuant to 8 CFR § 204.5(k)(4)(i), any American employer can file a petition in this category when the job requires an advanced degree and the alien possesses such a degree.  Further, 8 CFR § 204.5(k)(2) defines an advanced degree as beyond the baccalaureate.  Professions include, but are not limited to, the occupations listed in INA §101(a)(32) as well as any occupation for which a baccalaureate degree, American or foreign  equivalent, is the minimum requirement for entry into the occupation.

If a beneficiary has a baccalaureate degree plus five years of progressive experience in the field, the degree and experience may serve as the equivalent of a master’s degree.  If the beneficiary does not possess baccalaureate or master’s degree, then he may not qualify for this status on his experience.  Furthermore, the beneficiary may not substitute experience for a doctorate degree.  INS’ Memorandum, “Educational and Experience Requirements for Employment Based Second Preference (EB-2) Immigrants”, March 20, 2000, defines progressive experience as an increasingly advanced level of responsibility and knowledge.

B.         Workers of Exceptional Ability

To qualify as a worker of exceptional ability, the applicant must have a degree of expertise significantly above that of the average individual.  According to 8 CFR § 204.5(k)(3)(ii), the beneficiary must possess at least three of the following characteristics:

1. an official academic record showing a degree, diploma, certificate or similar award from a college, university, school or other institution of learning related to the area of exceptional ability;
2. at least ten years of full-time experience in his occupation documented by letters from current or past employers;
3. a license to practice or certification for his profession or occupation;
4. evidence that the alien has commanded a salary or other remuneration commensurate with exceptional ability;
5. membership in professional associations (there is no requirement that the professional associations require outstanding achievement for admission); or
6. recognition for achievements and significant contributions to the industry or field by peers, governmental entities or professional or business organizations.

USCIS might accept other comparable evidence which is based on a case-by-case basis, specifically the position sought and the beneficiary’s educational and professional experience.

Filing Procedure.  The petitioning employer must first obtain a labor certification submitted by the employer on Form ETA-9089 from DOL.  The petitioner does not need to provide a certified labor certification if he will serve the national interest or is a worker under one of DOL’s Schedule A categories found at 20 CFR § 656.5 and 656.15.  Schedule A categories are not limited to those of second preference.

1.         National-interest Waiver

The national-interest waiver (the “NIW”) is a job-offer requirement for an individual who wants to immigrate to the United States in the second-preference category.  This option is available to professionals holding advanced degrees or of exceptional ability in the arts, sciences or business.  The INA or other applicable regulations do not provide for the definition of “the national interest”.  Currently, USCIS uses the criteria discussed in Matter of New York State Department of Transportation (the “NYSDOT”), the Administrative Appeals Office’s (AAO) decision of August 7, 1998.

In this case, a civil engineer petitioned on his own behalf an NIW.  The petitioner held an M.S. in civil engineering (structures) from Iowa State University, specializing in “pre-stressed concrete construction as well as the design of post-tensioning and curved bridges.”  The Vermont Service Center and the Acting Associate Commissioner for Programs in Washington, D.C. denied the self-petition.  In reviewing the case, the AAO developed the following three-part test to qualify for a NIW:

1. Petitioner must show that he seeks employment in an “area of substantial intrinsic merit”.  Although USCIS has not explained in detail what constitutes such an area, it determined that, in the NYSDOT case, the petitioner satisfied this part of the test.
2. Petitioner must show that the proposed benefit is national in scope.  In NYSDOT, the AAO found that the alien’s work was national in scope because he worked on New York’s roads and bridges which, in turn, connected to the state and national transportation system.  AAO also found that the proper maintenance and operation of these bridges and roads served the interest of other regions of the United States.
3. Petitioner must produce evidence of “a national benefit so great as to outweigh the national interest inherent in the labor certification process.”  In the NYSDOT case, AAO, however, found that the petitioner did not meet this requirement and explained that “with regard to the unavailability of qualified workers, the job offer based on national interest is not warranted solely for the purpose of ameliorating a local labor shortage.”

Our office will carefully evaluate your eligibility under the current NIW standards, as well as regional differences inherent in USCIS when determining the viability of a petition for this waiver.

2.         Labor Certification or Schedule “A” Application

Generally, a petitioner must file an EB-2 petition together with an approved individual labor certification.  Exceptions to the labor-certification requirement (referred to as precertification) are available for positions under Schedule A, Group I and Group II occupations.

Pursuant to 20 CFR § 656.15(d)(1), to qualify for Schedule A, Group II, in the sciences or arts (excluding the performing arts) an individual must submit:  (1) evidence demonstrating his widespread acclaim and international recognition; (2) documentation showing that his work, during the past year, required, or his intended work will require, exceptional ability; and (3) evidence from at least two of the following categories:

1. receipt of international prizes or awards for excellence in the field;
2. membership in international organizations that require outstanding achievement;
3. publications about the alien relating to the alien’s work in professional publications;
4. evidence of the alien’s participation as a judge of the work of others in the same or an allied field;
5. original scientific or scholarly research contributions of major significance in the field;
6. authorship of scientific or scholarly articles in the field in professional journals with international circulation; or
7. display of the alien’s work at artistic exhibitions in more than one country.

Pursuant to 20 CFR § 656.15(d)(2), to qualify for Schedule A, Group II, in the performing arts an individual must submit:  (1) evidence that the alien’s work experience during the past twelve months required, and the intended employment will require, exceptional ability and (2) documentation to show this exceptional ability, such as:

1. documentation attesting to current widespread acclaim and international recognition as well as international prizes or awards for excellence;
2. published material by or about the alien such as critical reviews or articles in major newspapers, periodicals or trade journals (with title, date and author);
3. evidence of earnings commensurate with the claimed level of ability;
4. playbills and star billings;
5. documents attesting to the outstanding reputation of theaters, concert halls, nightclubs, and other venues in which the alien has appeared or is scheduled to appear; and
6. documents attesting to the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras or other organizations in or with which the alien has performed during the past year in a starring capacity.

EB-3 THIRD PREFERENCE—SKILLED WORKERS, PROFESSIONALS AND OTHER WORKERS

Statutory Definition.  Section 203(b)(3)(A) of the INA allocates certain percentage of employment-based immigrant visas per year to third-preference workers in three subcategories:

1. skilled worker (at least two years of experience required);
2. professionals (baccalaureate degree required for the position); and
3. other workers (fewer than two years’ experience required for the position).

A.         Skilled Workers

Skilled workers are those in positions that require a minimum of two years of training or experience.  Relevant post-secondary education counts as training.  The requirements of the job offer as stated on the application for permanent employment certification, Form ETA-9089, determine whether a job is skilled.  In drafting labor certifications, the employer should determine whether a job matches a position on the O*NET Occupations site, available online at www.flcdatacenter.com, and the job zone is at least a 3 (corresponding to a specific vocational preparation code of greater than 6 but less than 7 from the old Dictionary of Occupational Titles (two to four years’ experience required) so that the position will be classified as skilled.  Pursuant to 8 CFR § 204.5(1)(4), if the position is precertified under Schedule A, then the petitioner must show, either by industry standards or its own practice, that the job requires at least two years of experience.

B.         Professionals

According to 8 CFR § 204.5(1)(3)(C), professionals must possess a baccalaureate degree or foreign equivalent, and the petitioner must demonstrate that such a degree is a normal requirement for entry into the occupation.

C.         Other Workers

Other workers include those whose positions require fewer than two years of higher education, training or experience.  Please note that this visa category has been traditionally backlogged and for some countries the waiting period ranges from six to ten years.  Therefore, our office works closely with the petitioner and his sponsoring employer to determine whether there are alternative routes to permanent residence.

Filing Procedures.  Petitioner must file an immigrant petition for alien worker on I-140 with USCIS service center having jurisdiction over the place of employment.  For an EB-3 visa, the petitioner must attach a labor certification or Schedule A application attesting that the beneficiary is exempt from the labor certification requirement as well as a letter for a permanent, full-time job offer.  The petition should also include evidence that the individual meets the requirements for the job set forth in the labor certification.

OTHER EB CATEGORIES

Concurrent Filing.  Currently, in certain circumstances, USCIS allows concurrent filing of Forms I-140 and I-485, Application for Adjustment of Status.  This is permitted when an immigrant visa is immediately available to the alien, or would be immediately available if the I-140 petition were approved on the date of filing.

Filings in Multiple EB Categories.  It is sometimes an appropriate strategy to file two immigrant petitions, such as an EB-1 worker of extraordinary ability and an EB-2 for a national-interest petition.  In some cases, the sponsoring employer may wish to proceed with a labor certification while an EB-1 or EB-2 petition is pending.  The regulations do not limit the number of immigrant petitions that may be filed on behalf of a foreign-national worker.  Similarly, if there are visas available under the third preference, but not under the second, our office often considers filing the petition under the third preference.

Priority Date.  If a labor certification is required, then the priority date is that when the labor certification is accepted for processing at www.plc.DOLeta.gov.  Otherwise, the priority date is that when the Form I-140 visa petition is properly filed with USCIS.  The priority date attaches to the foreign national upon approval of the I-140 petition.  These petitions are valid indefinitely unless revoked.  Sometimes, priority dates may be lost due to failure to respond timely to DOL or USCIS’ requests for evidence during processing, the employer’s notice of withdrawal due to lack of intent to employ the alien following approval of the adjustment of status or the automatic revocation of Form I-140 petition due to the employer’s liquidation or sale.

Ability to Pay Wage.  The petitioning employer must also provide evidence that the employer is able to pay the offered wage as of the alien’s priority date.  USCIS accepts copies of financial statements, federal tax returns and payroll reports as evidence of the petitioner’s ability to pay.  To determine whether the employer is able to pay the wage, USCIS will ensure that the employer currently pays the proffered wage and that the employer’s balance sheet and income statement are solid.  If the alien works for the employer, copies of payroll checks, W-2 forms or the beneficiary’s tax returns provide evidence of his ability to pay the petitioner such wages.

Portability.  AC21 §106(c) permits employment-based adjustment of status applicants, whose I-485 applications have been pending for more than 180 days and which remain unadjudicated, to change jobs and employers as long as they remain in the same or similar occupational classification.  In addition, USCIS will consult O*Net to determine whether an alien transfers or “ports” to the same or similar occupation.  The geographic location of the new employment and, thus, a difference in the wage offered are not relevant unless the difference is significant, which suggests that the position may not be similar.  The portability provisions of AC21 are available to multinational managers and executives who might be porting to unrelated businesses.  Furthermore, the ability to pay is not relevant with regard to the new employer except to determine the legitimacy of the job offer.  An alien can also port to self-employment.  This, however, might raise questions about the intent of the parties at the time of filing the application for labor certification.

Porting is not possible if the I-140 is withdrawn before the I-485 has been pending fewer than 180 days or when it is denied or revoked (unless the revocation was based on a withdrawal made after the I-485 had been pending 180 days or more).  A new job offer is required in the same or similar occupation at the time the I-485 is being adjudicated under the adjustment-portability previsions.

Labor-certification Substitutions.  Under certain circumstances, an employer may substitute an alien beneficiary into a labor certification previously approved for another foreign worker provided that the substituted beneficiary met all of the required qualifications set forth on Form ETA-9089 on the date that the labor certification was originally filed.

The three preferences discussed above provide a wide range of employment-based immigration alternatives.  Contact our office to determine whether you might qualify under any categories discussed above.