Employment-based Green Cards

You may be able to gain permanent residency in the United States through employment.

Employment-based Green Cards

The United States strives to foster a strong, diverse workforce. Immigrant visas are among the most sought out visas because they each offer you Legal Permanent Residency (a green card), which is the first step towards obtaining citizenship.

One major drawback of the employment based immigrant visas is that they each have limited numbers available from year to year—this can keep you waiting in line for years before you are actually able to enter the United States. However, there are other options to temporarily enter the U.S. while you wait for your priority date to come around.

First Preference Priority Workers (EB-1)

An EB-1 Visa is available to you if you are:

  1. a person of extraordinary ability in the arts, sciences, education, business, or athletics; [1]
  2. an outstanding professor or researcher; [2]
  3. a manager or executive of a multinational company. [3]

If you are a person of extraordinary ability, then you will need to possess such ability (which has been demonstrated by sustained national or international acclaim), seek to enter the United States to continue work in the area of extraordinary ability, and your entry into the United States must substantially benefit prospectively the United States.[4] You can self-petition, so you do not need to already have a job offer in the United States.[5]

Defining Extraordinary Ability

“Extraordinary ability” is demonstrated by submitting evidence of three of the following items:

  1. Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence;
  2. Evidence of your membership in associations in the field which demand outstanding achievement of their members;
  3. Evidence of published material about you in professional or major trade publications or other major media;
  4. Evidence that you have been asked to judge the work of others, either individually or on a panel;
  5. Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
  6. Evidence of your authorship of scholarly articles in professional or major trade publications or other major media;
  7. Evidence that your work has been displayed at artistic exhibitions or showcases;
  8. Evidence of your performance of a leading or critical role in distinguished organizations;
  9. Evidence that you command a high salary or other significantly high remuneration in relation to others in the field; or
  10. Evidence of your commercial successes in the performing arts.[6]

Outstanding Professors or Researchers

If you are an outstanding professor or researcher, then you must demonstrate international recognition for your outstanding achievements in a particular academic field.[7] You must have at least 3 years of experience in teaching or research in that academic area.[8] You must be entering the United States in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education, but you need to already have a job offer in the United States, but do not need your employer to file a labor certification.[9] Also, you must include evidence of at least two of the following:

  1. Evidence of receipt of major prizes or awards for outstanding achievement;
  2. Evidence of membership in associations that require their members to demonstrate outstanding achievement;
  3. Evidence of published material in professional publications written by others about the alien’s work in the academic field;
  4. Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field;
  5. Evidence of original scientific or scholarly research contributions in the field;
  6. Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.[10]

Managers and Executives

If you are a manager or executive of a multinational company, then you must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation and you must be seeking to enter the United States to continue service to that firm or organization.[11]

Your employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer and the U.S. Company you are working for must have been in business for at least 1 year before filing your petition.[12]

Second Preference Employees (EB-2)

Unless you are eligible for the National Interest Waiver (see below), to acquire an EB-2 visa, you will have to have a U.S. employer file a petition with USCIS and a labor certification (PERM). The U.S. employer must also provide notice of the job opening and advertise the position to U.S. workers.

It is only after the U.S. employer advertises the job and interviews all interested U.S. workers that it may file a labor certification with the Department of Labor. Generally, you will only be eligible for a green card if your employer was unable to find any U.S. workers who meet the minimum job requirements (or could be trained in a reasonable period of on the job training)[13]

However, there are limited circumstances where an employer may take a more qualified foreign candidate over a U.S. worker (e.g. Universities can favor a more qualified foreign applicant for a permanent tenure track position over U.S. workers).

You may be eligible for an EB-2 Visa if you are a professional with an advanced degree or a person with an “exceptional ability.” [14] You may also apply for an EB-2 Visa under the National Interest Waiver.[15]

Advanced Degrees

If you are a person with an advanced degree, then you must obtain a job offer and a labor certification.[16] An advanced degree is any graduate level degree (e.g. M.A., M.B.A, J.D, Ph.D., M.D., etc.) or a Bachelor’s Degree coupled with five years of post-baccalaureate experience in the specialty.[17]

Exceptional Ability

If you are a professional with an exceptional ability, then you must obtain a job offer and a labor certification. “Exceptional ability” means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.[18] It can be proven by demonstrating three of the following:

  1. Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to  your area of exceptional ability
  2. Letters documenting at least 10 years of full-time experience in your occupation
  3. A license to practice your profession or certification for your profession or occupation
  4. Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  5. Membership in a professional association(s)
  6. Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  7. Other comparable evidence of eligibility is also acceptable.[19]

National Interest Waiver

A National Interest Waiver is available to you if you meet the exceptional ability test above and your employment would greatly benefit the United States.[20] You may self-petition for a green card and do not need an employer to sponsor you; however, you must show that you work is in the national interest to the U.S. and that going through the labor certification process would not be adverse to state national interest.[21]

Third Preference Skilled Workers (EB-3)

If you are a professional, skilled, or unskilled worker, then you may be eligible for a green card under EB-3 preference category.[22]

  • A skilled worker is someone who can demonstrate at least 2 years of job experience or training and is performing work for which qualified workers are not available in the United States as evidenced by a labor certification.[23]
  • A professional worker is someone who can demonstrate that they possess a U.S. baccalaureate degree or foreign degree equivalent, and that a baccalaureate degree is the normal requirement for entry into the occupation. The professional must be performing work for which qualified workers are not available in the United States as evidenced by a labor certification.[24]
  • An unskilled workers is someone who can demonstrate that they are capable of performing unskilled labor (i.e. labor that requires less than 2 years of training or experience to perform), that is not temporary or seasonal in nature, for which there are no qualified U.S. workers as evidenced by a labor certification.[25]

Schedule A Occupations

Each of the above must have an employer file a petition with USCIS and have a labor certification unless they are Schedule A occupations. The Department of Labor has deemed that Schedule A Occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed.[26] Therefore, these individuals can forgo this part of the labor certification process.[27] Example occupations listed under Schedule A Group I include:

  • Physical Therapists – who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy; and
  • Professional Nurses – the alien (i) has a Commission on Graduates in Foreign Nursing Schools (CGFNS) Certificate, (ii) the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) exam, or (iii) the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.[28]

Fourth Preference Special Workers (EB-4)

If you are a religious worker, or a “Special Immigrant,” then you may be eligible for a green card under EB-4 preference category.[29] A special immigrant is defined in detail in 8 U.S.C. § 1101(a)(27). Among the most common are:

Fifth Preference Investors (EB-5)

If you are an individual investor who is willing to invest $1,000,000 (USD) in a “new commercial enterprise”[30] in the United States—or $500,000 (USD) in a U.S. New Commercial Enterprise that is in an economically depressed area—then you (and your spouse and unmarried children under 21) may qualify for a green card under employment fifth preference status (EB-5).[31]

Your investment must create full-time employment (i.e. at least 35 hours per week) for not fewer than ten United States citizens, aliens lawfully admitted for permanent residence, or other immigrants lawfully authorized to be employed in the United States.[32] You may not count any jobs your investment creates for yourself, your spouse, or your children.[33]

The key to this particular visa, is that your investment will aid the U.S. in employment creation. This process can often be extremely complex and spans across several areas of law.

The time and effort involved in finding or creating such a project can burdensome. Rather than going this route alone, many investors choose to work closely with an immigration attorney and invest through an accredited regional center who handle most of the logistics surrounding the project and ensuring that the project will meet USCIS’s strict standards.

Conclusion

The road to an employment green card is not always an easy one. It is mired in paperwork and it can take time to get you into the country working. Working closely with an experienced immigration attorney can help lead you on the right path to securing a job here in the United States. Speak to one today.


[1] See 8 U.S.C. § 1153(b)(1)(A).

[2] See 8 U.S.C. § 1153(b)(1).

[3] See 8 U.S.C. § 1153(b)(1).

[4] See id.

[5] See 8 C.F.R. § 204.5(h)(5).

[6] 8 C.F.R. § 204.5(h)(3)(i)-(x).

[7] See 8 U.S.C. § 1153(b)(1)(B)(i).

[8] See 8 U.S.C. § 1153(b)(1)(B)(ii).

[9] See 8 U.S.C. § 1153(b)(1)(B)(iii).

[10] 8 C.F.R. § 204.5(i)(3)(i)(A)-(F).

[11] See 8 C.F.R. § 204.5(j)(3).

[12] See id.

[13] See 20 C.F.R. § 656.17(g)(2).

[14] See 8 U.S.C. § 1153(b)(2)(A).

[15] See 8 U.S.C. § 1153(b)(2)(B).

[16] See 8 C.F.R. § 204.5(k).

[17] See 8 C.F.R. § 204.5(k)(2).

[18] 8 C.F.R. § 204.5(k)(2).

[19] See 8 C.F.R. § 204.5(k)(3)(ii).

[20] See 8 U.S.C. § 1153(b)(2)(B)(i).

[21] See 8 C.F.R. § 204.5(k)(4)(ii).

[22] See 8 U.S.C. § 1153(b)(3)(A).

[23] See 8 U.S.C. § 1153(b)(3)(A)(i).

[24] See 8 U.S.C. § 1153(b)(3)(A)(ii).

[25] See 8 U.S.C. § 1153(b)(3)(A)(iii).

[26] See 20 C.F.R. § 656.5.

[27] See id.

[28] See 20 C.F.R. § 656.5(a).

[29] See 8 U.S.C. § 1153(b)(4).

[30] A “new commercial enterprise” is defined as the following established after November 29, 1990:  any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to, a sole proprietorship, partnership (whether limited or general), holding company, joint venture, corporation, business trust, or other entity which may be publicly or privately owned. This definition includes a commercial enterprise consisting of a holding company and its wholly-owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business. This definition shall not include a noncommercial activity such as owning and operating a personal residence. 8 C.F.R. § 204.6(e).

[31] See 8 U.S.C. § 1153(b)(5).

[32] See 8 U.S.C. § 1153 (b)(5)(A)(ii).

[33] See id.

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