Employment Based Permanent Residence

The Basics

There are several ways of immigrating to the United States permanently, or becoming a lawful permanent resident (“LPR”), based on one’s employment. To obtain immigrant status, an applicant must meet both the substantive and numerical requirements of the law. Substantively, one must qualify as an employee of a sponsoring employer or prospective employer.

Employment-Based Category 1 (EB-1)
PRIORITY WORKERS
Covers “priority workers.” No labor certification is required in this category. Roughly 40,000 visas have been allocated annually to this group. This category has three subcategories.

Category 1 – Sub-category A
Aliens with “extraordinary ability” in arts, sciences, education, business or athletics – To qualify in this sub-category, the applicant must show sustained national or international acclaim and achievements recognized through extensive public documentation, and must be able to demonstrate that his or her contribution would “substantially benefit” the United States prospectively.

Category 1 – Sub-category B
Outstanding professors and researchers – To qualify in this sub-category, the applicant must establish international recognition or acclaim, must have at least three years’ experience in teaching and research in the field, and must have an offer of employment for a tenured or tenured-track teaching position at a U.S. university or college, or a comparable research position in private industry.

Category 1 – Sub-category C
Certain multinational executives and managers – This sub-category provides an immigrant visa for individuals who were employed as executives or managers overseas during at least one year within the three-year period immediately prior to transfer into the United States,and who are transferred to the United States to perform executive or managerial duties. The overseas and U.S. employers must be the same or affiliated entities.

Employment-Based Category 2 (EB-2)
PROFESSIONALS AND ALIENS OF EXCEPTIONAL ABILITY
The second employment-based category annually allows for 40,000 visas, plus any spilldown of unused visas from Category EB-1. This category has two sub-categories. The first is open to members of the professions holding advanced degrees (e.g. above that of baccalaureate) or their equivalent. The second sub-category is available to those who, because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. Under the second sub-category, the applicant’s exceptional ability must be demonstrated by more than just a degree or license, and must be substantially above that normally encountered in the sciences, arts or business.

An applicant in this category generally must obtain a labor certification for his position. However, a specific job offer and labor certification may not be necessary if an applicant can demonstrate that such an exemption would be in the national interest.

Employment-Based Category 3 (EB-3)
SKILLED WORKERS, PROFESSIONALS AND OTHER WORKERS
This category also allows for 40,000 visas annually, plus any spilldown of unused visas from Categories EB-1 and EB-2. There are three sub-categories in this category. An applicant in each of these sub-categories usually must obtain a labor certification for his or her position.

Category 3 – Sub-category A
Skilled workers – An alien qualifies as a skilled worker if, at the time of petitioning for classification, he or she is capable of performing skilled labor requiring at least two years training or experience, and is being sponsored for a permanent position for which qualified workers are not available in the United States.

Category 3 – Sub-category B
Professionals – This sub-category encompasses aliens holding baccalaureate degrees or their equivalent who are members of the professions.

Category 3 – Sub-category C
Other workers – This sub-category is reserved for aliens capable of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States. A cap of 10,000 visas within the overall 40,000 annual limit for Category EB-3 is set for applicants seeking to qualify in this sub-category.

Employment-Based Category 4 (EB-4)
SPECIAL IMMIGRANTS
This category has 10,000 visas available per year, and encompasses religious workers, certain former United States government employees, and certain foreign nationals working for international organizations.

Employment-Based Category 5 (EB-5)
EMPLOYMENT-CREATION IMMIGRANTS
This “immigrant investor” category provides up to 10,000 visas annually to applicants who invest a minimum of $1 million in a new enterprise in the United States that will create jobs for at least ten United States citizens or permanent residents, other than immediate family members of the investor. In certain targeted employment areas, the investment may be reduced to $500,000.

If you have any questions regarding employment based immigration, please contact the Law Offices of Mark A. Urbanski.