1st and 2nd Preference (EB-1 & EB-2)

Introduction

Permanent resident status is given to people who are classified under the following visa categories. Such visa holders are issued green cards in order to live and work in the U.S. without time limitations. For an alien to receive a green card through employment, the alien must obtain a sponsor. A sponsor is a U.S. employer who offers the alien a job. Only after the alien has received a certified Alien Labor Certification by the Department of Labor based on his/her job offer can he/she adjust status to become a U.S. citizen.

1st and 2nd Preference (EB-1)

Priority workers are granted EB1 visas, which are the highest preference for employment visas. Individuals in this category can petition for permanent residency without having to go through the time consuming labor certification process. These visas will go to qualified immigrants who are:

• Aliens with extraordinary ability in sciences, arts, education, business, or athletics that has been demonstrated by sustained national or international acclaim
• Aliens who seek to enter the U.S. to continue work in the area of extraordinary ability, and
• Aliens whose entry into the U.S. will substantially benefit the U.S.A.

Outstanding professors and researchers are qualified in this category if they are:

• Recognized internationally as outstanding in specific academic areas,
• Working for at least 3 years in their field of study as a researcher or teacher in the academic area, and
• Seeking to enter the U.S.A. for a tenured position at a university or institution or for a position as a department, division, or institute of a private employer.

Multinational executives and managers can also receive an EB1 visa if the applicant:

• Has worked abroad for at least 1 continuous year for a qualifying firm or corporation (one that is doing business both in the U.S. and abroad during the whole transfer period) during the 3 years preceding the application, and
• Seeks to enter the U.S. to continue to render services to the same company or a subsidiary or affiliate of that company in a managerial or executive capacity. Whether a company can be classified as a subsidiary or affiliate of the overseas company is often a complex issue.

If the applicant is in the U.S. on an H-1B visa at the time of filing the L-1 petition, the USCIS will consider the 3-year period prior to the applicant's admission into the U.S. to determine whether he/she meets the above criteria. However, this will only be done if the alien on the H-1B visa is currently employed by a company related in a qualifying manner to the foreign employer with whom the alien was employed abroad for one continuous year. >

This visa is frequently used for high level executives or managers, even if they do not possess a university degree.

1st and 2nd Preference (EB-2)

Aliens fall under this category for a visa when they are professionals holding advanced degrees or have exceptional abilities, and whose abilities will benefit the United States. Normally, a valid job offer from a U.S. employer is required. The employer must complete the labor certification process, which involves a test of the job market to prove that no U.S. worker is qualified for such job position. However, the Attorney General may waive the requirement for a job offer it he deems it in the best interests of the U.S. This type of waiver is called a national interest waiver.

EB-1 Foreign Nationals of Extraordinary Ability, Outstanding Professors and Researchers and Multinational Executives and Managers

Individuals in this category can petition for permanent residency without having to go through the time consuming labor certification process.

EB-2 Workers with Advanced Degrees or Exceptional Ability in the Sciences, Arts or Business

Visa holders in this category normally must have a job offer and the potential employer must complete the labor certification process. The labor certification involves a testing of the job market to demonstrate that the potential visa holder is not taking a job away from a U.S. worker. In cases where an individual can show that his entry is in the national interest, the job offer and labor certification requirements can be waived.

3rd Preference (EB-3)

Aliens are granted EB3 visas when they can prove that they are skilled workers or professionals, and they are filling a position that requires such a skill. A skilled worker is one who is capable of performing skilled labor that requires a minimum of two years to fill the position. A professional is one who holds a baccalaureate degree and is a member of a specific profession. Other workers may qualify for this category as performing unskilled labor for which there are no qualified U.S. workers available.

Alien Labor Certification (ALC) is the most common process through which foreign workers can obtain permanent residence. It is issued after a U.S. employer has convincingly demonstrated to the U.S. Department of Labor (DOL) that no U.S. worker is able, qualified, and willing to perform the work for which a foreign worker is being hired.

EB-3 Skilled Workers and Professionals

Visa holders in this category normally must have a job offer and the potential employer must complete the labor certification process.

Alien Labor Certification (ALC) is the most common process through which foreign workers can obtain permanent residence. It is issued after an U.S. employer has convincingly demonstrated to the United States Department of Labor (DOL) that no U.S. worker is able, qualified and willing to perform the work for which a foreign worker is being hired.

4th Preference (EB-4)

Certain religious workers, ministers of religion, international organization employees, and recommended current and former US government employees may obtain an EB4 visa. Additionally, the spouse and children of the applicant may apply for a derivative status and enter the US along with the applicant.

To qualify as a special immigrant for this visa, the applicant must show:

• That he has been a member (for at least two years) of a religious denomination having a bona fide nonprofit, religious organization (exempt from taxation) within the U.S., and
• That he seeks to enter the U.S. solely for the purposes of carrying on the vocation of minister or that religious denomination.

Additionally, special immigrant status can be granted to:

• Immigrants who were lawfully admitted as permanent residents and are returning from abroad,
• Immigrants who were formerly U.S. citizens and want to apply for reacquisition of citizenship,
• Immigrants who were/are employed abroad for the U.S. government or for the Panama Canal Company or Canal Zone Government,
• Immigrants who have graduated from medical school and are qualified to practice medicine, is licensed, entered the U.S. as a nonimmigrant before January 10, 1978, and has been in the U.S. to practice or study medicine since that initial date of entry,
• Immigrants who are retired officers, the spouse of a deceased employee, or the children of an employee of an international organization and who have been physically present in the U.S. for at least one-half of the seven years before the date of application for a visa or adjustment of status,
• Immigrants who are present in the U.S. who have been declared on a juvenile court, placed under the custody of an agency or Department of State for reasons of foster care or for the best interests of the alien, and
• Immigrants who have served honorably on active duty in the Armed Forces after October 15, 1978 and then lawfully enlisted outside of the U.S.

EB-4 Special Immigrant Visas for Religious Workers

Certain religious workers, ministers of religion, certain international organization employees and their immediate family members, and qualified, recommended current and former U.S. Government employees.

5th Preference (EB-5)

Creation Visas in this category are given to those aliens who wish to engage in commercial enterprises:

• In which the alien has established, and/or
• in which the alien has invested, and
• in which the U.S. will benefit economically from the full-time jobs (at least 10) created by the enterprise.

Additionally, Congress has set aside up to 10,000 visas per year for alien investors in new commercial enterprises who create employment for teen individuals.

There are two groups of investors under the general programthose who invest at least $500,000 in targeted employment areas (rural areas or areas experiencing high unemployment of at least 150% of the national average rate) and those who invest $1,000,000 in any area. No fewer than 3,000 of the annual allotment of visas must go to targeted employment areas.

EB-5 Investor/Employment Creation Visas

Under the 1990 Immigration Act, Congress has set aside up to 10,000 visas per year for alien investors in new commercial enterprises who create employment for ten individuals.

There are two groups of investors under the programthose who invest at least $500,000 in targeted employment areas (rural areas or areas experiencing high unemployment of at least 150% of the national average rate) and those who invest $1,000,000 anywhere else. No fewer than 3,000 of the annual allotment of visas must go to targeted employment areas.