EB Visas

EB Visas

Do you have a desire to live permanently in the U.S. based on your employment skills, abilities, training, experience, or field of expertise?
If your answer is “Yes,” then this is important information for you to obtain an EB visas! The employment-based permanent resident visa category is most commonly used by people who permanently settle in the U.S. By filing through various employment classifications, through a U.S. employer, or self-sponsorship, a foreign national may be able to obtain their permanent residency in the U.S.
The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas (EB visas) divided into the five preference categories in the chart below. This chapter will discuss the three major employment-based permanent resident preference categories (i.e., EB-1, EB-2, and EB-3 visas).
By the way, it is not unusual for foreign nationals to enter the U.S. on an H-1B visa, an L Visa, or an F-1 visa, and later consider one of the employment-based categories below to immigrate to the U.S. In other words, many foreign nationals enter the U.S. as professional workers, students, or managers of corporations. After working in the U.S. for some time or conducting research as a Ph.D. student, they consider immigrating to the U.S. under the following categories.

EMPLOYMENT FIRST PREFERENCE (EB-1 VISAS): EXTRAORDINARY ABILITY

This category of “priority workers” receive 28.6 percent of the employment-based visas limit. An EB-1 visas is unique, as it does not require any labor certification from the U.S. Department of Labor, and in some cases, applicants can self-sponsor themselves. However, the applicants must be the beneficiaries of an approved Immigrant Petition, commonly referred to as the I-140 petition. Under the EB-1 persons of extraordinary ability, the foreign national can submit the I-140 on his or her own without having a U.S. sponsor. In other cases, an employer in the U.S. must submit the I-140 form on behalf of a foreign worker, so he or she may then become eligible for permanent residence status in the U.S.

The subgroups of the EB-1 visas are as follows:

1. Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation displaying national or international acclaim and recognition in the field of expertise. Such applicants do not have to have a particular job offer, so long as they enter the U.S. to continue work in the field in which they possess extraordinary ability. Such applicants can file their petition with the United States Citizenship and Immigration Services (USCIS), rather than through an employer;
2. Outstanding professors and researchers with at least three years of teaching or research experience are recognized internationally. This classification does not require labor certification, but the employer must provide a job offer and file a petition with USCIS.
3. Certain executives and managers must have worked for at least one of the last three years for the overseas affiliate, parent company, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. This classification does not require labor certification, but the employer must provide a job offer and file a petition with USCIS.

WHAT IS CONSIDERED “EXTRAORDINARY ABILITY”?

“Extraordinary ability” for an EB-1 visas means that your ability must be at the highest level in your field and recognized by national or international acclaim. For example, if you are a famous dancer or singer, or if you are a martial arts expert who has won several gold medals in international tournaments, or if you have been a judge in your field in national or international competitions, these would qualify you as having “extraordinary ability.”

EMPLOYMENT SECOND PREFERENCE (EB-2 VISAS): ADVANCED DEGREE HOLDERS OR EXCEPTIONAL ABILITY

This category also makes up 28.6 percent of the employment-based visas limit, plus any unused Employment-Based First Preference visas. The EB-2 visas is primarily for those foreign nationals with advanced degrees—such as a doctor’s degree or a master’s degree—or a baccalaureate/bachelor’s degree plus five years progressive work experience in that field, or for those with “exceptional ability.” The EB-2 visas requires a labor certification from the U.S. Department of Labor (DOL). A U.S. employer must petition for EB-2 visa applicants unless they qualify for the “national interest exemption” and receive a National Interest Waiver, which will be explained later in the chapter. The subgroups of an EB-2 visas are as follows:

1. Professionals with an advanced degree or a bachelor’s degree plus at least five years of relevant experience.
2. Persons with exceptional ability in the arts, sciences, or business.

WHAT IS CONSIDERED “EXCEPTIONAL ABILITY”?

“Exceptional ability” means that your level of capability is significantly more than is ordinarily seen in the sciences, arts, or business.

EMPLOYMENT THIRD PREFERENCE (EB-3 VISAS): BACCALAUREATE DEGREE HOLDERS OR SKILLED PERSONS OR OTHER WORKERS

The Employment Third Preference category makes up 28.6 percent of the employment-based visas limit, plus any unused first and Second Preference visas. This category is for those holding baccalaureate/bachelor’s degrees, skilled persons, and other workers. EB-3 visas require an approved I-140 petition from a U.S. employer, as well as a labor certification from the U.S. Department of Labor (DOL).

The three subgroups of an EB-3 visas are as follows:

1. “Skilled workers” are persons capable of performing a job requiring at least two years of training or experience;
2. “Professionals with a baccalaureate degree” are members of a profession with at least a university bachelor’s degree; and,
3. “Other workers” are defined as those capable of filling positions requiring less than two years of training or experience.

WHAT IS A LABOR CERTIFICATION?

Most employment-based visas require an approved Labor Certification from the U.S. Department of Labor (DOL). This document allows your employer to file an employment-based immigration petition on your behalf. Your employer has to prove to the U.S. Department of Labor (DOL) that despite diligent recruiting efforts, the employer could not find a ready, willing, and able candidate for the foreign national’s position in the U.S. market. This process can be very demanding and lengthy.

For a Labor Certification, the employer must advertise the job, interview applicants, and complete other hiring steps. Then they file an application stating they could not find a qualified U.S. worker, and wish to sponsor the foreign worker for a green card.

WHAT IS A NATIONAL INTEREST WAIVER (NIW)?

The main advantage of the National Interest Waiver (NIW) is that the foreign national does not need a sponsor. In contrast, EB-2 visas typically require a Labor Certification and a job offer. However, a foreign national/alien with exceptional ability may seek a National Interest Waiver, or NIW, which waives those requirements. The National Interest Waiver waives the Labor Certification and job offer requirements because the alien’s employment in the U.S. would be in the best interest of the United States. Unfortunately, there is no exact definition or statute that states the positions which qualify for a National Interest Waiver. However, specific criteria have to be met. These criteria are described below.

WHAT ARE THE REQUIREMENTS FOR A NATIONAL INTEREST WAIVER (NIW)?

For an EB-2 visas applicant to qualify for a National Interest Waiver, the applicant must show that:

1. The alien’s employment must be in an area of substantial intrinsic merit. If the visa applicant is paid for research or their work has artistic value, it likely has “substantial intrinsic merit.”
2. The proposed benefit must be national in scope. The alien’s contribution must provide benefits that impact a national scale and not just a limited region;
3. The national interest would be adversely affected if a labor certification were required for the alien. To pass this final test, the petitioner must show that the visa applicant will benefit the national interest more than a qualified U.S. worker. The labor certification process is designed to protect jobs for U.S. workers with the same qualifications. Thus, the applicant must demonstrate a national benefit that is significantly greater than the protection offered by this process.

More Points to Follow the Requirements

An EB-2 visas applicant must meet all three parts of the test to qualify for the National Interest Waiver and become eligible to waive the Labor Certification requirement. As well, the applicant must meet standard EB-2 criteria mentioned above: an advanced degree. A U.S. academic or professional degree (or a foreign equivalent degree above a baccalaureate/bachelor’s degree) will be sufficient. If you lack an advanced degree, a bachelor’s degree plus five years of relevant experience can equal a master’s degree. Alternatively, you can demonstrate exceptional ability in your field.

As mentioned earlier, another benefit of applying under the National Interest Waiver is that the foreign national/alien can apply without having a sponsor. In other words, a person can self-sponsor himself for permanent residency in the U.S. The National Interest Waiver is perfect for research scientists, well-published professors, and famous artists or athletes who can benefit the U.S. national interest.

CAN MY SPOUSE AND FAMILY ACCOMPANY ME ON AN EMPLOYMENT-BASED VISA?

Yes. Your spouse and children may accompany you on an employment-based (EB) visas. Your spouse may work in the U.S. but must first obtain the required employment authorization.

CONCLUSION:

Employment-based visas are an excellent choice for foreign nationals who permanently reside in the United States. Each employment-based visa category contains its own set of requirements for the employment-based visa applicant and/or their potential employer. To get an employment-based (EB) visa, you and your future U.S. employer must carefully check all the rules and requirements set by USCIS and/or the U.S. Department of Labor (DOL). If you are well-known in your field, you can get a green card without needing a U.S. sponsor. This is possible through the National Interest Waiver or the “extraordinary ability” category.