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Employment Based Immigrant Visas

The Immigration and Naturalization Act (INA) allows for employment based immigrant visas. Eligibility for these visas depends on the person’s background, education, employment history, and type of employment. There are five categories that allows such classification. Some of these categories require a labor certification from the Department of Labor and some do not. We will discuss 4 of these categories in this page.

First Preference Employment Category (EB-1) under INA §203(b)(1)

Aliens with Extraordinary Ability INA 203(b)(1)(A): This immigrant visa is available for immigrants with extraordinary ability in the sciences, arts, education, business or athletics. These individuals must have attained national or international acclaim through extensive documentation. These individuals must seek entry to continue their work in the field of extraordinary ability. Lastly, the entry of these individuals would benefit the United States. Even though the regulations do not require this, documentation of such benefit maybe beneficial. These individuals do not need an employer, but must intend to continue their work in the United States. INA §204(a)(1); 8 CFR §204.5(h)(5). Congress intended these visas for a small percentage of persons who have risen to the very top of their field of endeavor. Evidence must include:

  1. Evidence of one-time achievement such as a major internationally recognized award (Noble Prize); or
  2. Documentation of any three of the following:
    • Receipt of lesser nationally or internationally recognized prizes or award;
    • Membership in an association in the field for which classification is sought which requires achievements by their members;
    • Published materials about the person in professional or major trade publications;
    • Participation as a judge of the works of others;
    • Evidence of original scientific, scholastic, artistic, athletic, or business-related contributions;
    •  Authorship of scholarly articles in the field;
    • Artistic exhibitions or showcases;
    • Performance in a leading or critical role for organizations or establishments that have a distinguished reputation;
    • High salary or remuneration in relations to others in the field;
    • Commercial success in the performing arts.

Submission of evidence proving three of these categories is not dispositive and United States Immigration & Naturalization Services must still make a final determination of eligibility. The Burden of proof is on the applicant and must be shown by preponderance of evidence. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010).

Outstanding Professors and Researchers under INA §203(b)(1)(B):

These immigrants must be recognized internationally as outstanding in a specific academic area. These immigrants must stand apart through distinction based on international recognition. The person my have 3 years’ experience in teaching or research in his or her area. Experience in teaching while attaining a degree might be used if the person attains it.  The person must seek entry for one of the following reasons:

  • A tenure or tenure track position within a university or institution of higher education;
  • A comparable position at a university; or
  • A comparable position to conduct research for a private employer if the latter employs three full time researchers.

The offer for employment must be indefinite or for an unlimited duration. The applicant must submit evidence of at least two of these things:

  • Receipt of major prizes or awards;
  • Membership in an association which requires outstanding achievement;
  • Published materials in professional publications written about the applicant;
  • Evidence of judging the work of others;
  • Evidence of original scientific research;
  • Authorship or articles or books in the field.

Under 8 CFR §204.5(i)(2), a full course of study is defined as a body of specialized knowledge offered for study at United States Universities. USCIS would employ the same process mentioned above to determine eligibility. The employer must have the ability to pay the employee.

Multinational Executives and Managers INA §203(b)(1)(C):

The immigrant must have been employed abroad for one year (in the last 3 years) by the firm or corporation or other legal entity or an affiliate or subsidiary. Affiliates include entities owned and controlled by the same group of individuals in approximately the same percentages. 8 CFR §204.5(j)(2). Subsidiaries can be joint ventures if they have equal control and veto power. The Petitioner must show the corporate relationship and that the company will continue to exist after the Beneficiary immigrates. The Beneficiary must com in to the United States to continue working for the same employer. The company must be doing business in the United States for one year.

Managerial and executive capacity is defined under INA §101(a)(4). Managerial capacity means that the employee personally:

  • Manages the organization, department, subdivision, function, or components;
  • Supervises and controls the work of other supervisory, professional or managerial staff;
  • Has authority to hire and fire employees and other subordinates; and
  • Exercises discretion over day-to-day operations of the activity or function.

Executive capacity is defined as an assignment in an organization in which the Beneficiary personally:

  • Directs the management of the organization;
  • Establishes goals and policies;
  • Exercises wide latitude in discretionary decisions; and
  • Receives only generalized supervision or direction from high level executive, board of directors, or stockholders.

Second Preference (EB-2) INA §203(b)(2)

This preference category is for members of the professions holding advanced degrees or immigrant of exceptional abilities. The advanced degree must be higher than a bachelor’s and could be me by a BA and work experience.

The position that the Beneficiary would occupy must require the advanced degree and the person must possess the qualifications. A professional is defined in INA §101(a)(32).

National Interest Waivers are available for people who would enrich the United States. Person whose jobs are on Schedule A do not have to test the labor market and do not have a job offer at the time of adjudication f the I-485.

Bachelor’s degree plus five years of experience:

A Bachelor’s degree with five years of progressive experience is the equivalent of a MA degree. 8 CFR §204.5(k)(3)(i)(B). Congressional intent shows that a person with this combination has the equivalent of an advanced degree. USCIS policy is that the BA cannot be met by a combination of experience and education but can be met by a combination of education. The five years of progressive experience must involve more responsibility and knowledge in the field of specialty.

Definition of Exceptional Ability:

Exceptional ability is defined as a degree of expertise significantly above the level ordinarily encountered. Matter of Kim, 12 I&N Dec. 758 (AV 1968). The applicant must show proof of 3 of the following:

  • Degree relating to the area of specialty;
  • Letter from employers showing 10 years of experience;
  • Licenses to practice a profession;
  • The applicant commanded a salary demonstrating exceptional ability;
  • Membersha ip in professional association; and
  • Recognition for achievement and significant contributions to the industry.

Comparable evidence might be submitted including expert opinion letters. 8 CFR §204.5(k)(3)(iii). This includes athletes and entertainers. The two steps process in Kazarian is used to show exceptional ability.

National Interest Waivers (NIW):

A National Interest waiver is available under INA §203(B)(2)(B). The employer or the applicant can sign the petition. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). To qualify for the waiver, the Beneficiary must submit an ETA-9089 with a statement supporting the waiver claim. 8 CFR §204.5(k)(4)(ii). The waiver is only available for EB-2 petitions. In Dhanasar, the AAO issued new categories for the waiver. Under the ruling, the applicant must show 1) the proposed endeavor has national importance and substantial merit; 2) he or she is well positioned to advance the endeavor; and 3) it would be beneficial for the United States to waive the labor certification. Dhanasar, at 889 no. 9.

Physicians may qualify for a Physician National Interest Waivers (PNIW). International medical graduates (IMGs) are precluded from entering the United States. However, the ground of inadmissibility does not apply in these situations:

  1. Applicant possess a certificate from the Educational Commission on Foreign Medical Graduates, is competent in English and the clinical skills assessment examination.  8 CFR §214.2(h)(viii)(B);
  2. Doctor of International or national renown;
  3. Not entering the United States to become a doctor, including professors, persons entering under another preference category, or when he or she enters as an asylee.

Under INA §203(b)(2)(B)(ii) if the physician is entering the United States under an offer of employment, the physician must obtain a labor certification or a national interest waiver. Some physicians may work in an undeserved area to overcome the J-2 2 years requirement. To obtain this benefit, the physician must show 1) he or she must work in a health shortage area or for the VA; 2) a federal or state agency must determine that the employment would be in the national interest; and 3) must work in the area for 5 years before he o she becomes eligible for adjustment of status or immigrant visa. 8 CFR §214.2(a)-(c).

A foreign medical graduate may also apply under the regular labor certification process. 8 CFR §214.2(a)-(c).

Third Preference Employment Category (EB-3) INA §203(b)(3)

This category incudes three types of immigrants:

  1. Professionals: Holder of Baccalaureate degree or foreign equivalents and professionals
  2. Skilled workers: for immigrants who with full time job offers and which requires at least two years of training or work experience
  3. Other workers

A labor certification is needed for these immigrants. A National Interest Waiver is not available but some of these occupations may fall under Schedule A.

Fourth Preference (EB-4) Special immigrants under INA §203(b)(4)

This category includes several immigrants, including returning residents, persons reacquiring United States citizenship and Religious workers.

Returning residents are those who did not abandon their residence but do not have a valid I-551 card. The resident would file form DS-117 with all supporting evidence to show that she did not abandon her residence. She would be issued and SB-1 Immigrant Visa. This category also includes commuters from borders who are Lawful Permanent Residents who live in Canada or Mexico and commute to the United States. Time spent outside on commuter status does not could for naturalization purposes.

Religious Workers include ministers or religious workers who:

  1. For 2 years immediately preceding the petition has been a member of a religious denomination that has a bona fide, non-profit, religious purposes;
  2. The person seeks to enter the US to work for at least 35 hours as a minister or a religious worker; and
  3. The person has been working as a minister or a religious vocation in the United States or abroad for at least two years immediately preceding the petition. The two years do not have to be in legal status. Once the 2 years is established and the I-360 is approved, the person may adjust if he has been out of status for less that 180 days. Some breaks in the 2 years are allowed as long as 1) the applicant was still employed in a religions denomination 2) the break did not exceed 2 years 3) the purpose was to further religious education 4) the applicant was still a member of the denomination. The employment must be either full time or continuous. To meet the 2 years requirement the person should have been compensated.

Special Immigrant Juveniles (SIJ) are also included in this category. This is a hybrid between state dependency laws and the immigration laws of the United States. The requirements for this type of classification are as follows:

  1. The child has to be under 21 at the time of filing the I-360
  2. Has been declared dependent by a state court before he turned 18
  3. Whose reunification with one of his or her parents is not a viable option, and
  4. In his or her best interest not to be retuned to the parent’s country of citizenship

Please call us if you have any questions regarding these categories.

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