Business Based Immigration Law
The United States offers a wide range of both temporary visas and permanent resident visas (i.e. green cards) for employers, employees, investors, entrepreneurs, and others coming to the U.S. for employment or business-related purposes. VERDIN has expertise in all aspects of employment and business-based immigration, and can help you successfully navigate all of the law’s intricate requirements.
A permanent resident is someone who has been granted authorization to live and work in the United States on a permanent basis. As proof of that status, a person is granted a permanent resident card (commonly known as a green card). There are several different ways to become a permanent resident. Most individuals are sponsored by a family member or employer in the United States.
For more information on Business Based Non-Permanent Residency, please view the Business Based Immigration Law Non-Permanent Residency page. For more information on Family Based Immigration, please go to Family Based Immigration Law page.
EB-1A Extraordinary Ability in the Sciences, Arts, Education, Business or Athletes
EB-1B Outstanding Researchers and Professor
EB-1C Multinational Executives and Managers
EB-3 Professionals, Skilled Workers, or Unskilled/Other Workers
EB-5 Immigrant Investor Program, Permanent Residency
EB-1 Extraordinary Ability, Outstanding Researcher/Professor:
The first preference employment-based immigration category (EB-1), also called the “priority workers” category, is for those foreign national who possess an extraordinary ability, are outstanding researchers or professors, or are multinational managers or executives. No labor certification from the Department of Labor is required for the EB-1 category, nor any formal employer petition (though an offer of employment is required under certain circumstances).
The EB-1 category breaks down into three sub categories EB-1A, EB-1B, and EB-1C:
This category is for aliens of extraordinary ability in the sciences, arts, education, business or athletics. The applicant must demonstrate sustained national or international acclaim, and that his or her achievements have been recognized in the field of expertise. The applicant must also demonstrate that he seeks to come to the U.S. to continue work in the area of extraordinary ability, and that his entry will substantially benefit the United States.
The evidence must include either a major one-time achievement (ex: Nobel Prize, Oscar, Olympic medal), or any three of the following:
- Receipt of lesser nationally or internationally recognized prizes or awards
- Membership in an association in the field for which classification is sought which requires outstanding achievement of their members, as judged by recognized national or international experts
- Published material about the person in professional or major trade publications or other major media
- Participation as a judge of the work of others
- Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance
- Authorship of scholarly articles in the field
- Artistic exhibitions or showcases
- Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation
- High salary or remuneration in relation to others in the field
- Commercial success in the performing arts
No labor certification from the Department of Labor is required for the EB-1B category.
This category is for outstanding researchers and professors. In general, the researcher or professor must be recognized as outstanding in a specific academic area. They should stand apart in the academic community through eminence and distinction based on international recognition. Additionally, the applicant must have at least three years of experience in teaching or research in the academic area, and must be seeking entry to the U.S. to assume:
- a tenured (or tenure track) teaching position within a university or institution of higher education,
- a comparable position at a university or institute of higher education to conduct research, or
- a comparable position to conduct research with a private employer if it employs at least three full-time researchers and the department, division, or institution has achieved documented accomplishments in an academic field.
This category is for multinational executives and managers. In general, the applicant must have been employed abroad for one year in the last three years by a firm, corporation, or other legal entity (or an affiliate or subsidiary thereof) in a managerial or executive capacity, and must be seeking to enter the United States to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive in nature.
Notably, the “one year in the last three” requirement can be met even if the person has been in the U.S. for more than three years. He or she must be working for the same employer, affiliate, or subsidiary in the U.S. and must have been employed by the company abroad in a managerial or executive capacity for at least one year of the three years preceding entry into the U.S. in nonimmigrant status (ex: in L status).
Finally, it must be shown that the prospective United States employer has been doing business for at least one year.
No labor certification is required for this classification; however, the prospective employer in the U.S. must furnish a job offer in the form of a statement which indicates that the alien is to be employed in the U.S. in a managerial or executive capacity. Such letter must clearly describe the duties to be performed by the alien.
The second preference employment-based immigration category (EB-2) is for members of the professions holding an advanced degree or the equivalent, or 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 U.S., and whose services are sought by an employer in the U.S. A job offer and labor certification from the Department of Labor are generally required for the EB-2 category. Certain cases qualifying for a National Interest Waiver are not required to show a job offer and labor certification. Additionally, certain occupations (known as Schedule A occupations) are exempt from the labor certification process.
The EB-2 category breaks down as follows:
EB-2 Members of the Professions Holding an Advanced Degree or the Equivalent
This category is for those applicants who will fill a job requiring an advanced degree or its equivalent. The U.S. Citizenship and Immigration Service (USCIS) considers the advanced degree requirement satisfied by the following: (1) a U.S. master’s degree or higher or a foreign degree evaluated to be the equivalent of a U.S. master’s degree or higher; or (2) a U.S. bachelor’s degree or foreign degree plus five years of progressively more responsible experience. In the latter case, the bachelor’s degree requirement cannot be demonstrated by substituting work experience. USCIS takes the positions that, unless the labor certification or I-140 states otherwise, the five years of experience may be used both to establish equivalency of a master’s degree and to meet any experience requirement apart from the master’s degree.
It is important to note there are two agencies involved in the advanced degree-based EB-2 process, the Department of Labor and USCIS. An approved labor certification from the Department of Labor is required as part of this process. There is an interpretive conflict between the Department of Labor and USCIS with regard to the EB-2 educational and experience requirements, and it is highly recommended that competent counsel be retained to navigate this thorny issue.
EB-2 Exceptional Ability in the Sciences, Arts, or Business
This category is for those possessing a degree of expertise in the sciences, arts, or business significantly above that ordinarily encountered in those fields. To qualify, the applicant must first demonstrate any three of the following:
- Degree relating to area of exceptional ability
- Letter from current or former employer showing at least 10 years of experience
- License to practice profession
- Person has commanded a salary or remuneration demonstrating exceptional ability
- Membership in a professional association
- Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations
Comparable evidence may be submitted if the above categories are inapplicable. The applicant must demonstrate specifically how he or she will substantially and prospectively benefit the national economy, cultural or educational interests, or welfare of the U.S. A job offer and labor certification from the Department of Labor are required.
EB-2 National Interest Waiver
Aliens seeking a National Interest Waiver (NIW) are seeking EB-2 permanent residence, but requesting that USCIS waive the labor certification and job offer normally required of EB-2 applicants. All EB-2 applicants (including NIW seekers) must first qualify as either an advanced degree professional or an alien of exceptional ability. Most NIWs are granted to those having exceptional ability. The initial criteria for an NIW are: (1) the person seeks employment in an area of substantial intrinsic merit; (2) the benefit will be national in scope; and (3) the national interest would be adversely affected if a labor certification were required.
The third preference employment-based immigration category (EB-3) is for professionals, skilled workers, and unskilled/other workers. A job offer and labor certification from the Department of Labor are required for the EB-3 category. The requirements for EB-3 are somewhat less stringent than for EB-1 and EB-2.
The EB-3 category breaks down as follows:
EB-3 Professionals: Applicants for the EB-3 professional category must be able to 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. They must also demonstrate through an approved labor certification that they will be performing work for which qualified workers are not available in the United States. It should be noted that a combination of education and experience may not be substituted for the baccalaureate degree requirement.
EB-3 Skilled Workers: Skilled worker applicants must be able to demonstrate at least two years of job experience or training. They must also demonstrate through an approved labor certification that they will be performing work for which qualified workers are not available in the United States.
EB-3 Unskilled/Other Workers: Unskilled/other worker applicants must be capable, at the time the petition is filed on their behalf, of performing unskilled labor (requiring less than two years training or experience), that is not of a temporary or seasonal nature. They must also demonstrate through an approved labor certification that they will be performing work for which qualified workers are not available in the United States.
(click link above to view page)