|
Employment-Based Permanent Residence Options for International Workers in the United States
Click for a Printable Version of this Article
by Stephen Yale-Loehr and Michael J. Bayer* Introduction The U.S. immigration system has five employment-based (EB) immigrant visa categories that allow up to 140,000 people a year obtain permanent residence (also known as “green cards”) in the United States through their work or skills. These categories are set forth in the Immigration and Nationality Act (INA), which codifies most but not all U.S. immigration laws. This article summarizes the five employment-based categories. The INA gives first preference to “priority workers,” including noncitizen workers of extraordinary ability, outstanding professors and researchers, and multinational executives. Second preference goes to professionals with advanced degrees and workers with exceptional ability in the sciences, arts, or business. The third employment-based category includes professionals without advanced degrees, skilled workers, and unskilled workers. The fourth EB category provides visas for certain “special immigrants,” such as religious workers. Finally, the fifth EB category reserves a certain number of visas for immigrant investors seeking to enter the United States to start a commercial enterprise that will create or save at least 10 jobs for U.S. workers. Employment-Based First Category (EB-1): Priority Workers The INA gives 28.6 percent (approximately 40,000) of the total number of employment-based immigrant visas allocated each year to “priority workers.” There are three subcategories of priority workers: (1) noncitizens with extraordinary ability; (2) outstanding professors and researchers; and (3) certain multinational executives and managers. Each of the three subcategories has different eligibility criteria. Noncitizens With Extraordinary Ability (EB-1-1) EB-1-1 green cards are for noncitizens with extraordinary ability in the sciences, arts, education, business, or athletics. This subcategory covers noncitizens who have received national or international acclaim for work in their field of expertise. They must have “a level of expertise indicating that [they are] one of that small percentage who have risen to the very top of the field of endeavor.” There are two ways to satisfy the requirements of this subcategory. First, a person is eligible for an EB-1-1 green card if he or she has won a major international prize, such as a Nobel Prize. Second, individuals may be eligible if they can provide documentation that they meet at least three of the following ten criteria:
If an individual has extraordinary abilities in a field where the above ten criteria do not apply, he or she may submit other comparable evidence of eligibility. Simply meeting three of the ten criteria does not guarantee that the Immigration and Naturalization Service (INS) will grant the green card application. The quality of the individual’s achievements is as important as their quantity. Noncitizens with extraordinary ability may self-petition; they do not need an employer to sponsor them. However, they must demonstrate that they will work in their field of expertise. Outstanding Professors and Researchers (EB-1-2) The second subcategory of priority workers is for noncitizens who are internationally recognized as outstanding in a specific academic field. An EB-1-2 visa beneficiary must have at least three years of experience in teaching or research in his or her field. He or she must also be coming to the United States to accept a tenured, tenure-track, or other permanent position at a college or university, or at a company with a research lab that is distinguished in the field of expertise. In addition, the petitioner must provide evidence that the noncitizen satisfies at least two of the following six criteria:
Outstanding professors and researchers must have a firm offer of employment, but they do not require a labor certification, which is discussed below. Multinational Executives and Managers (EB-1-3) The third subcategory of the EB-1 preference is designed to facilitate the transfer of managers and executives of multinational corporations to the United States. A noncitizen may be eligible under this subcategory if he or she has worked outside the United States for a company or firm in a managerial or executive role for at least one of the three years immediately preceding the date of the application. The person must continue their executive or management duties in the United States. For the purposes of this subcategory, the INS considers executives to be those who direct the management or other major functions of an organization, and who exercise broad authority to make decisions and set goals and policies with only general guidance from their superiors. The INS defines managers to be those who supervise and control the work of other employees, or those who supervise and control an essential function within the organization. The petitioner must be either the same company that employed the noncitizen outside the United States or an affiliate or subsidiary of that company. The petitioner must be a U.S. employer, and it must have done business in the United States for at least one year. Multinational executives and managers require a petitioning employer, but they do not require a labor certification. Second Preference (EB-2): Professionals with Advanced Degrees and People with Exceptional Ability Under the INA, 28.6 percent (or approximately 40,000) of all employment-based immigrant visas each year are reserved for international professionals with advanced degrees and individuals who have exceptional ability in the sciences, arts, or business. International workers applying for EB-2 green cards normally need an employer to sponsor them, and usually must obtain a labor certification from the U.S. Department of Labor. The labor certification requirement is discussed below. The INS will waive the labor certification requirement for EB-2 applicants in two situations. First, the petitioner can apply for a waiver if the noncitizen’s work will be in the national interest. To prove eligibility for the national interest waiver, the petition must demonstrate that: (1) the noncitizen’s employment is in an area of substantial intrinsic merit; (2) will provide benefits that are national in scope; and (3) will serve the national interest to a substantially greater degree than would an available U.S. worker with the same minimum qualifications. Second, the INS will waive the labor certification requirement if the noncitizen qualifies for precertification for a position under the Department of Labor’s Schedule A, Group I or II. However, since the requirements for precertification under Schedule A, Group II are more similar to the requirements for an EB-1-1 visa than for an EB-2 visa, noncitizens who would be eligible for precertification under Schedule A, Group II should consider applying for an EB-1-1 visa. Professionals With Advanced Degrees The first subcategory of the EB-2 visa category is open to international professionals with an advanced degree. The petitioner’s job must require, and the noncitizen must possess, an academic or professional degree above the level of a U.S. baccalaureate degree or foreign equivalent. A noncitizen who does not hold a sufficient degree may still qualify for an EB-2 visa if he or she has a bachelor’s degree plus a minimum of five years of progressive experience in the specialty. This alternative means of satisfying the advanced degree requirement only applies to specialties that customarily require a master’s degree. Experience cannot serve as a substitute for the baccalaureate, and it will not be considered for specialties that customarily require a doctorate. People with Exceptional Ability The second subcategory of the second employment-based preference is designed for noncitizens with a degree of expertise in the arts, sciences, business that is significantly above the ordinary. To qualify in this subcategory, the petitioner must provide evidence that the noncitizen possesses at least three of the following six credentials:
Where the above credentials do not apply to the relevant occupation or field, the petitioner may submit other comparable evidence. Third Preference (EB-3): Professionals, Skilled Workers, and Unskilled Workers The INA allocates 28.6 percent (about 40,000) of the total annual number of employment-based immigrant visas to professionals, skilled workers, and “other workers” (meaning unskilled workers). While there is no allocation between skilled workers and professionals, the INA limits the number of visas for “other workers” to 10,000 per year. Regardless of the subcategory used, the petitioner must include the beneficiary’s labor certification or an application for a Schedule A, Group I or II designation. The requirements of the job offer as listed by the prospective employer on the beneficiary’s labor certification application determine the subcategory under which INS will consider the visa application. Professionals To qualify as a professional for EB-3 purposes, the noncitizen must hold a U.S. baccalaureate degree or foreign equivalent, and the petitioning employer must prove that a bachelor’s degree is the normal requirement for entry into the occupation. No amount of training or experience will substitute for the degree requirement. Skilled Workers Skilled workers are those who work in permanent (i.e. not temporary or seasonal) positions requiring at least two years of training or experience. Generally, positions in the Labor Department’s Dictionary of Occupational Titles with a Specific Vocational Preparation code of seven or greater will qualify as skilled. Relevant post-secondary education may count toward the two years of training or experience. Other Workers Other workers are those who are filling positions requiring less than two years training or experience. As relatively few visas are allocated to this subcategory, the waiting list for an EB-3 visa can be rather long. Practitioners should be sure to exhaust other available options before considering a green card petition in this subcategory. Labor Certification All workers in the EB-3 category and most persons applying in the EB-2 category must obtain a labor certification from the U.S. Department of Labor as part of the process. The labor certification is a statement from the Secretary of Labor that there are no U.S. workers available for the proposed position, and that the proposed employment will not harm the wages and working conditions of other U.S. workers. The certification is job and location specific, so any substantial change in duties or location will require a new labor certification. The petitioning employer applies for the certification with the intent that the available position will be filled by the noncitizen for an indefinite length of time. The process varies from state to state, but it usually begins by the petitioner submitting an application to the state’s Labor Department, and it typically entails a period of recruiting and interviewing candidates other than the noncitizen. Depending on backlogs at the state and federal labor agencies, the labor certification process can take two or more years. Fourth Preference (EB-4): Special Religious Workers The INA reserves up to 7.1 percent (about 10,000) of the total number of employment-based immigrant visas available per year for “certain special immigrants,” including religious workers. Religious workers include ministers of religion, professionals working in religious vocations or occupations, and others working in religious vocations or occupations. A person can qualify as a religious worker if he or she has, for at least the two years immediately preceding the date of the application, been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States. He or she must also seek to enter the United States solely to be a minister of that religious denomination, or to work for the organization in a professional capacity or at the request of the organization. Finally, the noncitizen must have been carrying on the vocation, professional work, or other work of the religious organization continuously for at least two years immediately preceding the date of the application. Fifth Preference (EB-5): Immigrant Investors The INA sets aside 7.1 percent of the total number of employment-based immigrant visas (approximately 10,000 per year) for noncitizens seeking to enter the United States to engage in a commercial enterprise that will benefit the U.S. economy and create or save at least ten full-time jobs. To be eligible for an EB-5 visa, the noncitizen must engage in a new commercial enterprise:
An EB-5 beneficiary must also meet several other criteria. The beneficiary must be an individual or group of individuals; corporations will not qualify. The new commercial enterprise must be either one that the noncitizen creates, one that he or she is purchasing and restructuring, or one that he or she is expanding substantially so as to increase the net worth of the business or its number of employees by at least 40 percent. Any for-profit entity, formed for the ongoing conduct of lawful business may qualify as a commercial enterprise. The INA sets aside 3,000 EB-5 visas per year for immigrant investors who establish a new commercial enterprise that will create jobs in a targeted employment area. A targeted employment area is an area that, at the time of investment, is a rural area or another area where the unemployment rate is at least 150 percent of the national average. Rural areas include areas other than metropolitan statistical areas or cities or town with a population of 20,000 or more. Along with these general requirements, the INS has issued a series of complex regulations for prospective EB-5 petitioners. For example, the regulations specify the types of jobs that must be created, the minimum number of hours that employees must work per week, where the jobs must be located, and how long the jobs must last. They also specify the level of involvement that the noncitizen must have in the management of the enterprise. Because requirements for the EB-5 visa are relatively onerous, the statutory maximum numbers are not usually reached. A practitioner will have a greater chance of successfully assisting a noncitizen through the EB-5 process if he or she has a thorough understanding of corporate, tax, investment, and immigration law. Conclusion Obtaining a green card in any of the five U.S. employment-based immigrant visa categories can be quite difficult. In addition to the complex substantive requirements, it can take a long time to get through the process. Up to three agencies may be involved: the Labor Department, the INS, and the State Department. Backlogs in some EB categories are several years because of processing delays by one or more agencies. For these reasons, the statutory annual limit of about 140,000 employment-based green cards is never reached. By contrast, other countries have simpler and faster ways to obtain permanent residence through employment or skills. Foot Notes: * Copyright © 2002 Stephen Yale-Loehr. All rights reserved.
|
