Employment-based immigrant visas allow noncitizens to immigrate to the United States for permanent residence. These visas are divided into five preference categories: the first three categories are reserved for skilled or unskilled workers, talented professionals or scientists, and executives of multinational companies, and the fourth and fifth categories for certain religious workers and other special immigrants. In this article, we will be focusing on the first three preference categories.
First Employment-Based Preference (EB-1) is a classification for immigrants under the employment-based first preference category. This category is for applicants who either have extraordinary ability in the sciences, arts, education, business, and athletics, who are outstanding professors or researchers, or who are executives or managers of multinational companies.
Extraordinary ability is defined to mean “a level of expertise indicating that the individual is in the small percentage who has risen to the very top of the field of endeavor.” This is typically demonstrated through sustained national or international acclaim including: either (1) winning a major internationally recognized award such as the Nobel Prize or (2) providing documentary evidence based on lesser accomplishments that demonstrate sustained national or international acclaim. The documentary evidence may come from 10 areas including awards or prizes received, membership in prestige professional associations or organizations, publicity in the new media, participation as a judge of the work of others in the field, original contributions in the field, scholarly publications, leading role for an organization with a distinguished reputation, high compensation, displays in artistic exhibition or showcase, and commercial success in the performing arts. If the noncitizen is applying under this preference, no offer of employment is required; however, the applicant must demonstrate that he will continue to work in the field after immigration. This can be done by submitting a letter from a prospective employer or a statement by the foreign national describing his or her intended work in the U. S.
Outstanding researchers and professors must have at least three years of experience in teaching or research in their field and must be recognized internationally as outstanding in their field. It is important to note that applications for EB-1 outstanding researchers and professors are limited to ONLY academic fields. For this application type, a labor certification is not required, but an offer of employment from a university or similar institution of higher learning is mandatory.
Executives and managers of multinational companies may apply for permanent resident status in the U.S. In order to qualify for this category, the applicant must have been employed outside the U.S. for at least one year in the three years preceding the petition, and must be transferring to a similar position with the same company or a qualifying affiliate in the United States. An offer of employment by a U.S. company is required, but there is no requirement for labor certification. The petitioning U.S. company must also have been doing business in the U. S. for one year before filing the petition.
Second Employment-Based Preference (EB-2) is for individuals who are members of the professions holding advanced degrees or who have exceptional ability in the arts, sciences, or business. To qualify for this category, an individual must either have a job offer from a U.S. employer and have obtained a labor certification from the Department of Labor, or may be self-petitioning as an individual through the National Interest Waiver (NIW) option which allows certain individuals with advanced degrees or exceptional ability to bypass the labor certification process if it can be demonstrated that their work is in the national interest of the United States.
Advanced degree is a degree that is above a bachelor’s, or alternatively, a bachelor’s degree plus five years of “progressive” post-baccalaureate work experience in a profession. This can be evidenced through an official academic record and letters of work experience that demonstrates these qualifications.
Exceptional ability for the purposes of an EB-2 visa is defined as a level of expertise significantly above that ordinarily encountered in the sciences, arts, or business. To qualify for an EB-2 visa as an individual with exceptional ability, an individual must have a job offer for a position that requires exceptional ability and must be able to demonstrate that they possess such ability through a combination of education, work experience, and other achievements. To demonstrate exceptional ability, an individual may need to provide evidence such as awards or prizes, membership in professional associations, published articles or research, and letters of recommendation from experts in their field. The specific evidence required will depend on the individual's occupation and the requirements for the position they are seeking.
Third Employment-Based Preference (EB-3) is for skilled workers, professionals, and other workers who want to live and work permanently in the United States. The applicant must have a job offer from a U.S. employer and the employer must obtain a labor certification from the Department of Labor. The labor certification process verifies that there are no qualified U.S. workers available for the position and that hiring the foreign worker will not negatively impact the wages and working conditions of U.S. workers. There is generally a long wait for EB-3 visas due to the low quantity of visa numbers set aside under this category.
Professional is an applicant who holds a U.S. bachelor’s degree or a foreign equivalent degree and is also a member of a particular profession. The employer must submit evidence demonstrating that the minimum of a bachelor’s degree is required for entry into the offered employment.
Skilled worker is defined as a worker who is capable of performing labor that requires at least two years of training or experience and is not of temporary or seasonal nature. In some cases, post-secondary education may be considered as training. The second requirement for filing as a skilled worker is that there are no other qualified workers available in the U. S to do the labor.
Other Workers are those whose positions require less than two years of training, work experience, or college education. Similar to qualifying as a skilled worker, the applicant must be doing work where there are no other qualified workers in the United States to perform the labor.
Employment-based immigrant visas are a valuable pathway for individuals to live and work permanently in the United States. It is important to carefully research the specific requirements and procedures for obtaining an employment-based visa, and to seek the assistance of an immigration attorney to navigate the multistep application process. While the process of obtaining an employment-based visa can be challenging, it can also be a rewarding and life-changing opportunity for individuals seeking to live and work in the United States. In summary, below are the five steps on applying for an employment-based visa.
Determine Eligibility: To be eligible for an employment-based visa, the applicant must generally have a job offer from a U.S. employer and the employer must be willing to sponsor him for the visa. The specific requirements for each preference category can vary, so it is important to determine which category the applicant is eligible for and what the requirements are.
Gather evidence: To apply for an employment-based visa, the applicant will need to provide evidence of his qualifications and the job offer. This may include a copy of his resume, transcripts, degrees, certificates, and letters of prior work experience.
Obtain a labor certification: In most cases, the U.S. employer must obtain a labor certification from the Department of Labor which verifies that there are no qualified U.S. workers available for the position, and that hiring the worker will not negatively impact the wages and working conditions of U.S. workers. There are some exceptions to this requirement such as for individuals with advanced degrees or exceptional ability who may qualify for a National Interest Waiver.
File the petition: The U.S. employer must file a petition (Form I-140) with the USCIS. along with the petition, the employer must also provide evidence of the job offer and the worker’s qualifications for the position. Once the petition is filed, it will be reviewed by the USCIS. If the petition is approved, it will be forwarded to the Department of State's National Visa Center (NVC). The foreign national will then need to wait for the visa number to become available in order to take the next step for consular processing. The length of this waiting period varies depending on the visa preference and the applicant’s nationality.
Complete the visa application process: When the visa number becomes available, the applicant will need to complete the visa application process. This includes submitting a visa application (Form DS-260), paying the required fees, and scheduling an interview at a U.S. embassy or consulate. The applicant will be required to attend the interview at a U.S. embassy or consulate as part of the visa application process. During the interview, a consular officer will review the application and ask questions to confirm the applicant’s eligibility for an employment-based visa.
After the interview, the consular officer will review everything and make a decision on the visa application. If the visa application is approved, an employment-based visa will be issued, which will allow the immigrant to enter, live and work permanently in the United States.
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DISCLAIMER: This Article is for informational purposes only and may not be used in the place of legal advice.