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Employment Based "Green Card" Visa

EB-1 Visas | EB-2 Visas | EB-3 Visas | EB-4 Visas | EB-5 Visas

EB-1 – Priority Workers Visas

EB-1 is a First Preference category and reserved for those foreign nationals who demonstrate that they have extraordinary ability in one of the following fields: sciences, arts, education, business or athletics. 

  • Must demonstrate sustained national or international acclaim;
  • Achievements have been recognized in their particular field through extensive documentation;
  • The foreign national must demonstrate that he or she will continue to work in their field of endeavor;
  • Must demonstrate that the person requesting the classification will substantially and prospectively benefit the United States;
  • Reserved for that “small percentage of individuals who have risen to the very top of their field of endeavor.”

Evidence can include EITHER a one-time achievement of a major internationally recognized award OR documentation of at least three of ten categories that the government has set forth in the regulations:

  • Receipt of lesser nationally or internationally recognized awards;        
  • Artistic showcases or exhibits;
  • Membership in associations which require outstanding achievements of its members;
  • Material about the foreign national that has been published in professional, trade, or major newspapers or other major media;
  • Evidence of the foreign national’s original contributions of major significance that may be scientific, artistic, athletic or business-related;
  • Evidence that the foreign national has performed in a leading or cultural role for organizations or establishments that have a distinguished reputation;
  • Commercial success in the performing arts;
  • That the foreign national commands a high salary or remuneration compared to others in the same field;
  • Participation as a judge or adjudicator in the work of others;
  • Proof of authorship of scholarly articles in the field;
  • Comparable evidence if the above categories do not readily apply to the foreign national;
  • Comparable evidence may include expert letters.

Evidence of satisfying at least three of the ten criteria above is still subject to the “finals merits” determination that looks at all evidence to determine if the foreign national has indeed risen to the top of the field and has sustained national or international acclaim.

EB-2 Visas

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

EB-2 is reserved for those foreign nationals who hold advanced degrees or can be qualified as aliens of exceptional ability.

  • “Advanced Degree or Equivalent” – Employment position must require an advanced degree;
  • Degree needs to only relate to the area of exceptional ability, and not necessarily be in the same field;
  • Person must have the degree or its equivalent in education and work experience;       
  • “Exceptional ability” is defined as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.”
  • Labor certification is required unless applicant qualifies for a National Interest Waiver (NIW);
  • If profession or job offer is within Schedule A, applicant does not have to test the labor market; must submit an ETA-750 or 9089 along with other documentation;
  • B.A. or B.S. degree or foreign equivalent plus five years of progressive, post-degree work experience;
  • Must demonstrate that the applicant’s work will “substantially benefit” the United States, whether economically, culturally or educationally.

Exceptional ability proved by qualifying in three of the following:

  • Letter from employers, whether current or former, indicating that the foreign national has at least 10 years of work experience in the field;
  • Degree is related to area of exceptional ability;
  • The foreign national must have a license to be able to practice in the subject profession;
  • Foreign national is a member is a professional association related to the field of exceptional ability;
  • Foreign national has commanded a high salary which demonstrates exceptional ability;
  • Letters from peers, experts, business organizations, etc., demonstrating that the foreign national has been recognized for achievements and for significant contributions to the field;
  • Comparable evidence may be submitted only if the above categories are not applicable.

Two-step analysis is applicable to EB-2 visa petitions. By meeting three of the above requirements, petition is then subject to “final merits” determination as to whether the foreign national has met the required high level of expertise.

 NATIONAL INTEREST WAIVER

National Interest Waivers, if granted, allow the beneficiary to apply for EB-2 classification without the necessity of obtaining a labor certification.

To qualify, as part of an EB-2 classification petition, foreign national must demonstrate:

  • The foreign national is seeking to be employed in an area of substantial intrinsic merit;
  • The benefit is of national in scope;
  • The national interest would be adversely affected if a labor certification were required to be obtained and submitted.

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

Regarding Professionals:

  • Available to those persons who possess a baccalaureate degree or foreign equivalent, and are employed in that particular profession.         
  • Must be offered full-time permanent job;
  • Employment must require at least two years of training OR work experience;
  • Labor Certification is required;
  • National interest waiver is not available to EB-3 applicants;
  • If foreign national has a foreign degree, the degree must be analyzed to determine if it is equivalent to a US baccalaureate degree;

Regarding Skilled Workers:

  • Permits equivalency based on foreign national’s education and work experience;

Other Workers:

  • Includes those foreign nationals with less than two years of training and work experience.

EB-4 (Fourth Preference) – Special Immigrants

EB-4 is reserved for the following:

  • Lawful Permanent Residents who are returning from a temporary visit abroad in order to prevent the determination that LPR abandoned residency in US;
  • Person who is reacquiring Citizenship of the United States;
  • Panama Canal Treaty Employees and their spouses and children;
  • International Medical Graduates;
  • G-4s-  Retired G-4 officer and spouse, or unmarried son or daughter or widow/widower (if G-4 is deceased) of an international organization and has been in G-4 status or N status; applies within 6 months of retirement;
  • Court Dependents as they relate to “the care of unaccompanied alien children”;
  • U.S. Service members who honorably served for 12 years on active duty. Service must have occurred after October 15, 1978 and be pursuant to a lawful enlistment outside the US.,
  • NATO Civilian Employees;
  • Broadcasting Board of Governors (BBG) broadcasters who enter the US to work for International Broadcasting bureau of the Broadcasting Board of Governors (BBG). Includes spouses and children;
  • Iraq and Afghanistan nationals who were translators with the U.S. Armed Forces for at least 12 months, received a favorable recommendation from the chief of the mission, has cleared background security check, and are otherwise admissible;
  • Iraqis who were employed by the U.S. after March 20, 2003, for at least one year and provided faithful and valuable service to the U.S. during that period of time;
  • Afghanistan citizens or nationals who were employed by U.S. government after October 7, 2001, for at least one year and provided faithful and valuable service to the U.S. during that period of time; and,
  • Religious Workers (see below).

Regarding Religious Workers:

  • The person must have been a member of a bona fide, nonprofit, religious organization in the U.S. for at least two years before filing the petition;
  • Must establish he or she has been working for at least two years in a religious occupation whether abroad or in the U.S. in lawful status (with some exceptions);
  • Seeks to work full time (minimum 35 hours per week);
  • Will work solely in the religious position as a minister OR will work in a religious occupation or vocation;
  • That the religious organization for whom the foreign national will work is bona fide and nonprofit;
  • Compensation must have occurred during the two year period;
  • Must be coming to the United States to work in a paid religious occupation or vocation.

EB-5 Visas (Fifth Preference) – Employment Creation – Investors

EB-5 visas are also known as Investor Visas. They are set aside for those persons who invest $1,000,000 (or $500,000 in targeted employment areas; see below) in a new commercial enterprise that creates at least 10 full time jobs per investor:

  • Jobs must be for United States citizens or authorized immigrant workers;
  • 10 full time jobs cannot include investor or family members;
  • Workers must engage in the day-to day management of the enterprise or be involved in the policy formation of the enterprise;
  • Must be a “new” commercial enterprise formed after November 29, 1990;
  • Investment can take many forms: cash, equipment, inventory, cash equivalents, etc.
  • Investment must be put “at risk;”
  • Investor must prove that he or she is legal owner of the capital being invested into the venture or enterprise.

$500,000 investment in targeted employment areas:

  • Targeted Employment Areas (TEA) is defined as follows: either a rural area or an area of high unemployment;
  • Rural area is defined as an area outside the metropolitan statistical area and outside a population area of 20,000 or more;
  • An area that its unemployment rate is at least 150% above of the national average.

Employment Creation:

  • At least 10 full time 35 hours per week positions must be created for U.S. workers or qualifying immigrant workers;
  • The ten jobs should be created within the two year conditional residency period;
  • A comprehensive business plan must be submitted which will demonstrate the projected size and nature of the commercial enterprise;
  • Two or more qualifying employees may share a full-time position but two part-time jobs do not qualify as a full time position.

Multiple Investors:

  • Two or more investors may pool their funds but each investor who wishes to qualify for conditional residence must qualify independently by meeting the capital and hiring of employees requirements.
  • Investors are not required to establish a commercial enterprise but may join a partnership that has already been established.

Regional Centers:

Regional Center Program was established for the purpose of allowing investment through the center and allowing foreign nationals to count both direct and indirect job creation.

  • Regional Centers are public or private economic development programs involved in the promotion of economic growth including job creation, sales, increased domestic capital investment, etc.
  • They provide the foundational framework  for investors to invest in order to satisfy EB-5 eligibility requirements.
Caterina Ranieri Grasso, Esq. | Call (315) 410-0119

Caterina Ranieri Grasso
Of Counsel
Bousquet Holstein PLLC

110 West Fayette Street
One Lincoln Center, Suite 1000
Syracuse, New York 13202
Phone: (315) 701-6462





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