The Employment Preference Categories - 01 - Spring/03-15... · Investors Employment-based Immigration Options: Five Priority Categories 2 2018 NW Regional Immigration Law Conference

TRUSTED COUNSEL. ADVOCATES. ADVISORS.™

lanepowell.com │800.426.5801

Jessica Yu Megan Vogel

1

The Employment Preference Categories

Employment-based 1st

Preference (EB-1):

EB-1A: Individuals with Extraordinary

Ability

EB-1B: Outstanding Researchers

and Professors

EB-1C: Multinational Executives or

Managers

EB-2:

Members of Professions

with an advanced

degree or its equivalent, or

individuals w/exceptional

ability

EB-3:

Professionals, Skilled

Workers, or Other

Workers

EB-4:

Special Immigrants

EB-5:

Immigrant Investors

Employment-based Immigration Options: Five Priority Categories

2

2018 NW Regional Immigration Law ConferenceBasics Track, Session 5

The Employment Preference categories

March 15-16, 2018 Page 1 of 16

Immigrant Visa Numbers

3

• Approximately 140,000 EB immigrant visas issued in any fiscal year. Spouses and children applying as derivatives are also counted toward this limit.

• No more than seven percent of the total IV quota may be issued to individuals born in the same foreign country.

• If total demand for a particular category is not greater than the numbers available, the unused numbers may be made available without regard to the annual per-country limits. This helps assure that all available numbers are used.

Visa Bulletin & Priority Dates

• The system for allocating immigrant visa numbers. Priority dates set an individual’s “place in line” relative to other beneficiaries of the same category and nationality.

• A priority date is set as the filing receipt date of an individual’s immigrant visa petition or their PERM application, whichever is earliest.

• When a priority date becomes available, or is “current,” under the DOS Visa Bulletin immigrants may be able to apply for adjustment of status (if in the U.S.) or consular process (if abroad) to be admitted for lawful permanent resident status.

4



March 15-16, 2018 Page 2 of 16

Immigration Petition:

• An immigration petition is a necessary step for many intending immigrants.

• The intending immigrant is the “beneficiary” of a petition.

• In the employment-based immigration context, the employer is normally the “petitioner.”

• In some situations, the intending immigrant can be both the “petitioner” and the “beneficiary” – known as “self petition.”

5

Steps After the Petition is Approved: Adjustment of Status vs. Consular ProcessingAdjustment of Status (AOS) from within the U.S.

• Form I-485

• INA § 245(k): Allows beneficiaries of EB petitions to adjust who have been out of status, worked without authorization, or violated the terms of admission.

• Only available: EB-1, EB-2, EB-3, EB-4 (religious workers only)

• AOS is possible if, since last being admitted as a nonimmigrant beneficiary has not:

• Failed to continuously maintain a lawful status;

• Engaged in unauthorized employment; or

• Otherwise violated the terms and conditions of admission

For more than 180 days• If AOS is not possible, beneficiary will have to

return to home country and consular process.

Consular Processing from Abroad

• Upon the approval of the immigration petition, the National Visa Center (NVC) will notify the applicant and his/her petitioner to pay the immigrant visa fee and to collect documents.

• Consular office will schedule the applicant for an interview when the priority date becomes current.

• The specific consular processing procedure may differ from Consulate to Consulate.

• Applicant will apply for an immigrant visa from the U.S. Embassy or Consulate.

• Once the visa is issued, the applicant may enter the U.S. and receive his or her green card after the entry.

6



March 15-16, 2018 Page 3 of 16

Recent Changes for Employment-Based Cases

• Interviews for adjustment of status applicants have started for cases filed after March of 2017.

• FN with an I-140 petition approved for 180+ days will not have the petition automatically revoked if petitioner goes out of business or withdraws the petition.

• Supplement J to the I-485: Adjustment of status applicants must file this form to confirm the details of the job offer that is the basis for the immigrant visa.

7

Priority Date: AOS “Chart A” vs. “Chart B”• Since September 2015, in addition to the “Application Final

Action Dates” chart (Chart A), the DOS has added another “Dates for Filing Visa Applications” chart (Chart B).

• Chart B dates are earlier than the Chart A dates, which means shorter visa queue.

• USCIS issues guidance monthly regarding whether AOS applicants should follow Chart A or Chart B for submitting I-485 applications.

8



March 15-16, 2018 Page 4 of 16

• No need to obtain a labor certification • Visa numbers are generally current – No waiting period• There are three subcategories of EB-1

EB-1A: Individuals with “Extraordinary Ability” who has “risen to the very top of their field of endeavor.” Self-petition is okay. Recognition in your field must be proven through extensive documentation.

EB-1B: Outstanding professors/researchers with 3+ years of experience. No self-petition.

EB-1C: Multinational Executives/Managers who have been employed abroad in that capacity with the foreign subsidiary, affiliate or parent of the U.S. petitioning employer for at least 1 year in the last 3 years. No self-petition. No premium processing.

Employment-Based First Preference EB-1

You have a one-time achievement (Nobel Prize, Pulitzer, Oscar, Olympic medal);

Or, You meet at least 3 out of 10 listed criteria to prove extraordinary ability:

1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence2. Membership in associations in the field which demand outstanding achievement of their members3. Published material about you in professional or major trade publications or other major media4. You have been asked to judge the work of others, either individually or on a panel5. Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to

the field6. Authorship of scholarly articles in professional or major trade publications or other major media7. Your work has been displayed at artistic exhibitions or showcases8. Performance of a leading or critical role in distinguished organizations9. You command a high salary or other significantly high remuneration in relation to others in the field10. Commercial successes in the performing arts

“Final Merit” test by test established by Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)Premium processing is available

EB-1A: Alien of Extraordinary Ability



March 15-16, 2018 Page 5 of 16

• Requires international recognition for outstanding achievements in a particular academic field.

• Must have at least 3 years’ experience in teaching or research in the field.

• Must be entering the U.S. to do eithera.Tenure or tenure track teaching or comparable research

position at university or other institute of high education); or b.A comparable position to conduct research with private

employer if it employs at least 3 full-time researchers and the departmental, division or institution has achieved documented accomplishments.

EB-1B: Outstanding Professors and Researchers

12

EB-1B: Outstanding Professors and ResearchersMust meet at least 2 of the 6 listed criteria:

1. Evidence of receipt of major prizes or awards for outstanding achievement

2. Evidence of membership in associations that require their members to demonstrate outstanding achievement

3. Evidence of published material in professional publications written by others about the alien's work in the academic field

4. Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field

5. Evidence of original scientific or scholarly research contributions in the field

6. Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field



March 15-16, 2018 Page 6 of 16

• Employed abroad for one year (in last 3 years) by “firms or corporation or other legal entity or an affiliate or subsidiary.”

• Qualifying relationship between the foreign & U.S. entities.

• Both entities will continue to exist.

• U.S. company must be “doing business” in U.S. for one year.

• Employed in managerial or executive capacity both in and out of the U.S.

• Requirements are similar to that of L-1A.

EB-1C: Multinational Executives and Managers

14

Employment-Based Second Preference EB-2• Member of the professions holding an

advanced degree or its equivalent

• Foreign national (FN) who has exceptional ability

14



March 15-16, 2018 Page 7 of 16

15

EB-2 Exceptional Ability

Requires exceptional ability in the

sciences, arts, or business.

Exceptional ability = a degree

of expertise significantly above that ordinarily

encountered in the sciences,

arts, or business.

Must demonstrate that the beneficiary

will substantially benefit the economic, cultural,

educational interests, or

welfare of the U.S.

Requires PERM Labor

Certification

15

16

EB-2 Exceptional Ability

• Submit evidence of at least 3 of these 6 achievements:• Degree relating to the area of exceptional ability.• Employer letters demonstrating at least 10 years of full-time experience

in the field. • License/certification to practice profession.• Membership in professional associations, based on ability.• Recognition by peers, professionals, or business organizations in the

profession.• High salary or other remuneration

16



March 15-16, 2018 Page 8 of 16

17

EB-2 Advanced Degree Professional

• Position must require (and FN must have) a master’s degree OR bachelor’s degree plus 5 years of progressive post-degree experience.

• Foreign equivalent degrees are acceptable.

• The degree cannot be demonstrated by a combination of experience and education. However, it can be demonstrated by a combination of degrees/education.

• Requires PERM Labor Certification

17

1818

PERM Labor Certification

• Issued by the U.S. Department of Labor.

• For EB-2 and 3, labor certification is required before an immigration petition can be filed.

• A labor certification verifies: a. Insufficient amount of available, qualified and willing U.S. workers for

the positionb. Hiring a foreign worker will not adversely affect the wages & working

conditions of similarly employed U.S. workers

• The process of obtaining a labor certification can take 10-12 months



March 15-16, 2018 Page 9 of 16

19

The PERM Process

• A permanent offer of full time employment (not temporary or seasonal) is required

• Minimum requirements cannot be unduly restrictive or be tailored to the background of the FN.

• Prevailing Wage: U.S. Department of Labor decides the minimum wage that the employer must be willing to pay the FN upon becoming a permanent resident.

19

20

The PERM Process

• PERM recruitment involves specific steps for employer to advertise the job and invite applications.

• Employers may be selected to conduct “supervised recruitment” with the DOL being closely involved in the recruitment and screening of applicants.

20



March 15-16, 2018 Page 10 of 16

21

EB-2 National Interest Waiver of the PERM and Job Offer Requirements• EB-2 self-petitioning is possible when USCIS grants a NIW

• Matter of Dhanasar Standard for NIW• Either Exceptional Ability or Advanced Degree eligibility has been

established• FN’s proposed endeavor has both substantial merit and national

importance• FN is well positioned to advance the proposed endeavor; and• On balance, it would be beneficial to the U.S. to waive the

requirements of a job offer and labor certification.

21

22

Employment-Based Second Preference EB-3

22

• No self-petition option for EB-3; a full-time job offer from an employer is required

• Professional workers

• Skilled workers

• Other workers



March 15-16, 2018 Page 11 of 16

23

EB-3 Professionals

• FN possesses a U.S. bachelor’s degree or foreign degree equivalent, and this degree is the normal requirement for entry into the occupation

• Education and experience may not be substituted for a baccalaureate degree

• FN must perform work for which qualified workers are not available in the United States

23

24

EB-3 Skilled Workers

• Demonstrate at least 2 years of job experience or training


24



March 15-16, 2018 Page 12 of 16

25

EB-3 Other Workers

• Job must be for unskilled labor that requires less than 2 years of training or experience.

• Position may not be of a temporary or seasonal nature.


25

26

Employment-Based Second Preference EB-4• No PERM labor certification required

• Self-petition possible for certain types of Special Immigrants, see the Form I-360 Instructions

• Petition filed with Form I-360

• There is a visa backlog for those from El Salvador, Guatemala, Honduras, and Mexico

26



March 15-16, 2018 Page 13 of 16

27

Special Immigrants Eligible for EB-4

• Religious Workers • Special Immigrant Juveniles• Broadcasters• G-4 International Organization or NATO-6 Employees and Their Family

Members• International Employees of the U.S. Government Abroad• Armed Forces Members• Panama Canal Zone Employees• Certain Physicians• Afghan and Iraqi Translators• Afghan and Iraqi Nationals Who Have Provided Faith Service in Support of

U.S. Operations27

28

EB-4 Religious Workers

• Allows a clergyperson to work full time in a compensated position as a minister for a bona fide, nonprofit religious organization (or its affiliate) in the U.S.

• FN must have has been working as a minister or in a religious vocation or occupation, either abroad or in the U.S. for at least the 2–year period immediately preceding the filing of the petition.

28



March 15-16, 2018 Page 14 of 16

• The Investor must invest $ 1 million into a “New Commercial Enterprise.

• The amount is reduced to $500,000 if investment is made in Targeted Employment Area

• Rural Area; or• Areas with high unemployment (150% of the national average)

• The Investment must create 10 full-time jobs. • Conditional green card & removal of conditions• Spouse and children under the age of 21 included.• 10,000 quota available for EB-5 category

Employment-Based Fifth Preference Category: EB-5

• Started as a pilot program in 1992

• Invest requisite investment amount into a USCIS designed Regional Center

• $1 million or $500,000 depending on TEA • Perform due diligence on the project

• The Investment must create 10 full-time jobs. • Indirect jobs and induced jobs count for job creation

• The Investor will first receive conditional green card & must file petition to remove the condition 2 years later.

• Source of Funds

EB-5 Regional Center



March 15-16, 2018 Page 15 of 16

• Permanent program• Invest requisite investment amount into a New Commercial

Entity• A commercial enterprise established after November 29, 1990• Restructure/reorganization• 40% expansion

• Active management • The Investment must create 10 direct full-time jobs.• Must file petition (I-864) to remove the condition 2 years later.• Source of Funds• Pooled Investment possible

EB-5: Direct Investment

Jessica Yu Megan Vogel

32



March 15-16, 2018 Page 16 of 16

Documents

The Employment Preference Categories - 01 - Spring/03-15... · Investors Employment-based Immigration Options: Five Priority Categories 2 2018 NW Regional Immigration Law Conference