EB Visa (Employment Bases)
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 a chapter you will want to read, as it covers important information for you to obtain an EB visa! The employment-based permanent resident visa category is most commonly used by people who intend to permanently settle in the United States. By filing through various employment classifications, through a U.S. employer, or through 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), which are 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 United States 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 United States. In other words, many foreign nationals enter the United States as professional workers, students or managers of corporations. After working in the United States for some time or conducting research as a Ph.D. student, they consider immigrating to the United States under the following categories.
Employment First Preference (EB-1 Visa): Extraordinary Ability
This category of ”priority workers” receives 28.6 percent of the employment-based visa limit. An EB-1 visa is special, as it does not require any labor certification from the U.S. Department of Labor, and in some cases, applicants can self-sponsor themselves. The applicants must, however, be the beneficiary 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 own without having a U.S. sponsor. In other cases, an employer in the U.S. must submit the I-140 filing form on behalf of a foreign worker, so he or she may then become eligible for permanent residence status in the United States. The subgroups of the EB-1 visa are as follows:
- 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 specific job offer, so long as they are entering the U.S. to continue work in the field in which they possess the extraordinary ability. Such applicants can file their own petition with the United States Citizenship and Immigration Services (USCIS), rather than through an employer;
- Outstanding professors and researchers with at least three years’ experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the United States Citizenship and Immigration Services (USCIS); and,
- Certain executives and managers who have been employed at least one of the three preceding years by 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. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the United States Citizenship and Immigration Services (USCIS).
What is considered “Extraordinary Ability?”
“Extraordinary ability,” for the purposes of an EB-1 visa, means that your ability must be on 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 Visa): Advanced Degree Holders or Exceptional Ability
This category also makes up 28.6 percent of the employment-based visa limit, plus any unused Employment Based First Preference visas. The EB-2 visa 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 visa requires a labor certification from the U.S. Department of Labor (DOL), and also requires that a U.S. employer petition for the EB-2 visa applicant, except if they fall under the “national interest exemption” (and are granted a National Interest Waiver), which will be explained in detail later in the chapter. The subgroups of an EB-2 visa are as follows:
- Professionals holding an advanced degree (beyond a baccalaureate/bachelor’s degree), or a baccalaureate degree and at least five years progressive experience in the profession; and
- 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 Visa): Baccalaureate Degree Holders or Skilled Persons or Other Workers
The Employment Third Preference category makes up 28.6 percent of the employment-based visa limit, plus any unused First and Second Preference visas, as well. 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 visa are as follows:
- “Skilled workers” are persons capable of performing a job requiring at least two years’ training or experience;
- “Professionals with a baccalaureate degree” are members of a profession with at least a university bachelor’s degree; and,
- “Other workers” are defined as those persons capable of filling positions requiring less than two years’ 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 was unable to 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. The employer has to advertise for the position, conduct interviews, if required, screen applicants, and complete other official procedures related to recruiting. Finally, an application will be filed by the employer with the Department of Labor attesting that they did not find a qualified, experienced worker for the position, despite their recruiting efforts. The application basically conveys to the Department of Labor that, since the employer was unable to find a suitable U.S. employee, the employer wishes to sponsor the foreign worker for permanent residence.
What is a National Interest Waiver (NIW)?
The biggest advantage of the National Interest Waiver (NIW) is that the foreign national does not need a sponsor under this category. As mentioned above in the EB-2 visa category, normally a Labor Certification and a job offer is needed for an immigrant petition. However, a foreign national/alien with exceptional ability may try to 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 a 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 visa applicant to qualify for a National Interest Waiver, the applicant must show that:
- The alien’s employment must be in an area of substantial intrinsic merit. If the visa beneficiary is being paid to do a particular kind of research, or if the work has at least some sort of artistic or other value, then the work of the alien will more than likely be considered to be of “substantial intrinsic merit.”
- 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.
- The national interest would be adversely affected if a labor certification were required for the alien. In order to meet this final and most important part of the test, the petitioner must prove that the visa beneficiary will serve the national interest to a “substantially greater degree” than would an available U.S. worker having the same minimum qualifications. The labor certification process exists to protect the jobs and job opportunities of U.S. workers having the same objective minimum qualifications as an alien seeking employment. Therefore, an alien seeking an exemption from this process must present a national benefit so great as to outweigh the national interest protected by the labor certification process.
An EB-2 visa applicant must meet all three parts of the test in order 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 that of a baccalaureate/bachelor’s degree will be sufficient. In the absence of an advanced degree, a baccalaureate/bachelor’s degree or foreign equivalent, plus at least five years of progressive experience in the specialty is considered the equivalent of a master’s degree. In the alternative, the applicant can claim exceptional ability, i.e., a degree of expertise significantly above that ordinarily encountered in the alien’s field of expertise.
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 to the United States. The National Interest Waiver Category is ideal for research scientists, professors who have several publications and are internationally renowned, famous personalities, artists, sports personalities who can contribute to the National Interest of the United States.
Can my spouse and family accompany me on an employment-based visa?
Yes. Your spouse visa and children visa may accompany you on an employment-based (EB) visa. Your spouse may work in the U.S., but must first obtain the required employment authorization.
The employment-based visas are a great choice for those foreign nationals who are intending to 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. In order to qualify for any of the various employment-based (EB) visas, it is essential that you thoroughly review, along with your prospective U.S. employer, all conditions and requirements established by the United States Citizenship and Immigration Services (USCIS) and/or the U.S. Department of Labor (DOL). The good news is that if you are extremely renowned in your field of endeavor, you can qualify for a green card without having a U.S. sponsor, under the National Interest Waiver Category or under the “extraordinary ability” category.