Employment-Based Immigrant Visas (Green Cards)

Summary of Employment-Based Immigrant Visas (Green Cards)

Usually, under the employment-based immigration categories, the potential employer of a foreign national begins the permanent residency application process by filing a petition with the U.S. Citizenship and Immigration Services (USCIS).  However, in most employment-based immigration categories, the employer must first file an application with the U.S. Department of Labor’s Employment and Training Administration requesting certification to hire a foreign national. This is the Labor Certification Process which will be discussed in more detail below.

Under the Immigration and Nationality Act (INA), employment-based immigration has the following categories:

EB-1 – First Preference (priority workers)

This classification is for priority workers (a) with extraordinary ability, (b) outstanding professors and researchers and (c) multinational executives and managers.  No labor certification is required for the First Preference, but the prospective employer must provide a job offer and file a petition with the USCIS. All workers in this category must be the beneficiaries of an approved Form I- 140, Immigrant Petition for Foreign Worker, filed with USCIS.  Within this preference there are three sub-groups:

• Persons of extraordinary ability in the sciences, arts, education, business, or athletics: Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise.  Such applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability.  Such applicants can file their own petition with USCIS, rather than through an employer;
• Outstanding professors and researchers with at least three (3) years of experience in teaching or research, who are recognized internationally: No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with USCIS; and
• Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer: The applicant must be coming to work in a managerial or executive capacity.  No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with USCIS.

EB-2 – Second Preference (workers with advanced degrees or exceptional ability)

This classification is for persons with advanced degrees or the equivalent due to work experience and those with exceptional ability in the sciences, arts or business whose exceptional ability will substantially benefit the United States.  All Second Preference applicants must have a labor certification approved by the U.S. Department of Labor (DOL), or Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program.  A job offer is required and the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the alien may file the petition, Form I-140, along with evidence of the national interest.  There are two subgroups within this category:

• Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession; and
• Persons with exceptional ability in the arts, sciences or business.  Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field.

 

EB-3 – Third Preference (professionals, skilled workers, and other workers)

This classification is for professionals with baccalaureate degrees and persons with at least two years of experience as skilled workers.  Unskilled workers are also included in this classification if they can perform work for which there are no qualified workers in the United States.  All such workers require a labor certification, or Schedule A designation, or evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program.  There are three subgroups within this category:

• Skilled workers are persons capable of performing a job requiring at least two years’ training or experience;
• Professionals with a baccalaureate degree are members of a profession with at least a university bachelor’s degree; and
• Other workers are those persons capable of filling positions requiring less than two years’ training or experience.

EB-4 – Fourth Preference (special workers such as those in a religious occupation)

This classification is for members of nonprofit religious organizations coming to the country to work for that organization.  To qualify, the person must have been a member of the organization for at least two (2) years before applying for admission.

EB-5 – Fifth Preference (employment creation)

This classification is for persons who have invested between $500,000 and $1,000,000 in a U.S. commercial enterprise.  The amount of investment depends upon the unemployment rate in the geographical area of investment. To qualify, the foreign national must invest between $500,000 and $1,000,000 in a commercial enterprise in the U.S. which creates at least 10 new full-time (at least 35 hours per week) jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.  If the investment pertains to the acquisition of a “troubled business,” the investor may be credited for preserving the employment of current employees. A “troubled business” is a business that has been operating for at least two (2) years and has incurred a net loss during the 12- or 24-month period prior to the priority date on which the investor applies for the EB-5 visa. The loss for this period of time must be at least 20% of the net worth of the “troubled business” prior to the loss.

The EB-5 petition is submitted on Form I-526, together with all of the documentation supporting the petition.  Upon submission to USCIS, an EB-5 petition takes approximately 9 to 12 months to grant approval and, upon approval, the investor and his or her family are granted conditional permanent residency in the U.S. for a period of two years.  Critical to the presentation of an EB-5 employment creation visa petition are showing that (i) the investor has established a new commercial enterprise, (ii) the investor has invested the requisite amount of money and such money has been placed at risk, (iii) the monies invested were lawfully gained, (iv) the investment has created at least ten full-time jobs, (v) the investor has the intention of residing in the United States, and (vi) the investor will be engaged in management of the U.S.  enterprise.

Prior to the expiration of the two years of conditional residency, the applicant must file Form I-829 in order to remove the conditions of the permanent residency that was granted.  Under 8 CFR Section 216.6(c), the applicant must show that the investment continues, that the business is still active and continues to employ at least ten persons on a full-time basis.

EB-5 Regional Centers

The EB-5 Regional Center Pilot Program was created in October 1992, and extended through September 30, 2012.  The requirements for an investor under the Regional Center Program are essentially the same as for the standard EB-5 Visa, except that the Regional Center Pilot Program provides for a more expansive concept of “job creation,” including direct and indirect jobs.  A Regional Center is defined as an economic entity that is involved with the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment. In order for a regional center to obtain the “Regional Center” designation from USCIS, the organizers must submit a proposal, supported by economically or statistically valid forecasting tools, showing:

• How the regional center plans to focus on a geographical region within the United States.   The proposal must explain how the regional center will promote economic growth in that region.
• How, in verifiable detail (using economic models in some instances), jobs will be created directly or indirectly through capital investments made in accordance with the regional center’s business plan.
• The amount and source of capital committed to the regional center and the promotional efforts made and planned for the business project.
• How the regional center will have a positive impact on the regional or national economy.

Approval of a Regional Center usually takes about 9 to 18 months.

Labor Certification Process

In most cases, before a U.S. company can offer permanent employment to an alien worker, the company must first obtain certification from the U.S. Department of Labor that there are no U.S. workers (either U.S. residents or citizens) that qualify for the job in question.  In order to show this, the company must go through a recruitment process in which it places advertisements in various media in the geographic area of intended employment. This will require the company to place advertisements in newspapers, on the Internet, in local/ethnic newspapers and internally within the company during a ninety-day “recruitment period.”

The advertisements are usually placed in (i) a newspaper of general circulation in the area where the company’s principal offices are located, (ii) an Internet job bank, (iii) the web page of the company, and (iv) a local/ethnic newspaper in the area where the company’s principal offices are located.  Other alternative media include campus recruiting, radio ads and job fairs.

In addition to the advertisements, the company must also place a Notice of Job Availability or “job posting” in a conspicuous location in the company’s offices for ten (10) consecutive business days.  A job order will also need to be sent to the State Workforce Agency (SWA) in the geographic area where the job is located and should run for a period of thirty (30) calendar days.

Upon placing of the advertisements, the company will begin receiving resumes from potential job applicants.  Unless the resume shows that the applicant is not qualified, each person who provides a resume should be interviewed, either telephonically or in-person to determine whether or not the applicant is qualified for the position.

The recruitment period needs to be held open for 30 calendar days after the last recruitment step occurs in order to allow people to apply for the position.  At the conclusion of the recruitment period, plus the 30-day period mentioned above, an Application for Alien Labor Certification is submitted electronically with the U.S. Department of Labor.

In connection with the Labor Certification Application, the company will need to monitor layoffs in the specific occupational category, in the area of intended employment, during the advertising and recruitment period.  In this respect, the company will be required to certify that there has been no change in the answer to the following question: “Has the employer had a layoff in the area of intended employment in the occupation involved in this application or in a related occupation within the six months immediately preceding the filing of this application?”

Once the Labor Certification Application is certified, which usually takes between 60 to 120 days, the company can file a Petition for Alien Worker with USCIS.

When the petition is approved by USCIS, the beneficiary must wait for an immigrant visa number from the Department of State, unless the category has immediately available visa numbers.  Visa numbers are limited based on the immigrant classification. If the beneficiary is already in the country, then the beneficiary must apply to adjust status to permanent resident status when a number becomes available.  If the beneficiary is outside the country, when a visa number becomes available, the beneficiary will be notified to go to the local U.S. consulate to complete processing.

Petitions

With certain exceptions, all intending immigrants who plan to base their immigrant visa application on employment in the United States must obtain an approved immigrant visa petition from USCIS.  If a labor certification is required and granted, the employer may then file a Form I-140, Petition for Immigrant Worker, with USCIS for the appropriate employment-based preference category.

Once the I-140 petition is approved, if the intending immigrant is in the U.S., he or she must file an I-485 application to adjust his or her status to that of permanent resident.  If the intending immigrant is outside of the U.S., then the I-140 approval is forwarded to the National Visa Center of the U.S. Department of State and processing of the residency application continues there.  The intending immigrant will eventually be requested to appear for an interview at the U.S. Consulate in the country where the intending immigrant is currently living.

Visa Ineligibility/Waiver

The immigration laws of the United States, in order to protect the health, welfare, and security of the U.S., prohibit the issuance of a visa to certain applicants.  Examples of applicants who must be refused visas are those who: have a communicable disease, or have a dangerous physical or mental disorder; have committed serious criminal acts; are terrorists, subversives, members of a totalitarian party, or former Nazi war criminals; have used illegal means to enter the U.S.; or are ineligible for citizenship.  Some former exchange visitors must live abroad for two (2) years. Physicians who intend to practice medicine must pass a qualifying exam before receiving immigrant visas. If they are found to be ineligible, the consular officer will advise the applicant of any possible waivers.

Required Documentation

All applicants must submit certain personal documents such as passports, birth certificates, police certificates, and other civil documents, as well as evidence that they will not become public charges in the United States.  The consular officer will inform visa applicants of the documents needed as their applications are processed.

Medical Examinations

Before the issuance of an immigrant visa, every applicant, regardless of age, must undergo a medical examination.  The examination will be conducted by a doctor designated by the consular officer. Examination costs must be borne by the applicant, in addition to the visa fees.

Issues for Residents

Once a foreign national becomes a U.S. legal permanent resident (LPR), the person must live in the United States to maintain permanent residency status.  There is a presumption under the law that a U.S. LPR has abandoned residency if the person spends more than 12 months outside the country without a permit.  Coming back to the United States every six months may help to hide foreign residency, but it usually complicates matters. Certain factors are crucial in showing that a U.S. LPR maintained residency:

 

• Filing annual income tax returns;
• Maintaining a U.S. residence;
• Maintaining a U.S. bank account