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EMPLOYMENT-BASED GREEN CARDS The employment-based immigration categories are commonly referred to as EB-1, EB-2, and EB-3. EB-1 includes workers of extraordinary ability; outstanding professors and researchers; and multinational executives and managers. EB-2 is for members of the professions with advanced degrees or of exceptional ability. EB-3 is for professionals, skilled workers, and other workers. Workers of extraordinary ability must be one of a small percentage who has risen to the very top of the field of endeavor. Workers of extraordinary ability are defined by statute as those who have extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. Neither a job offer nor a labor certification is required for this category. Although an employer can petition for an EB-1 worker of extraordinary ability, the alien can also self-petition without an employer’s sponsorship. Either way, the petition must include evidence that the individual will continue to work in the United States in the area of his or her expertise. Such evidence includes: letters from prospective employers; evidence of prearranged commitments for employment; or a description of how he or she will continue to work in the field in the United States. Receipt of a major, internationally recognized award, on its own, can qualify an individual for EB-1 classification. An example of such an award is the Nobel Prize. Alternatively, the alien can make a sustained showing of recognition on either a national or international level. More specifically, the petition must include persuasive documentation in at least three of the following areas:
If the above criteria do not apply, the regulations also allow for “other comparable evidence.” The second subcategory of priority workers within the EB-1 classification is outstanding professors and researchers. These workers are professors and researchers who are internationally recognized for their outstanding achievements. To qualify as an outstanding professor or researcher, the alien must: 1) be internationally recognized as outstanding in a specific academic field; 2) have a minimum of three years of experience in teaching and/or research in that field; and 3) enter the United States in a tenure or tenure-track teaching or comparable research position at a university or other institution of higher education, or in a comparable research position with a private employer under certain circumstances. Research positions must be "permanent." A permanent position is defined as a tenured, tenure-track, or for a term of indefinite or unlimited duration with the expectation of continued employment, unless there is good cause for termination. Thus, an offer of employment that is of indefinite duration, but terminable at will, likely satisfies the requirement of permanent employment. The employer need not be a university or educational institution. The employer can be a private company, but it must employ at least three full-time researchers. The private employer also must have documented accomplishments in the academic field within which the position is offered. The outstanding professor or researcher must satisfy at least two of the following criteria:
The third subcategory of the EB-1 classification is reserved for
executives and managers of foreign companies who are transferred
to the United States. The requirements for this classification
closely track those for nonimmigrant (L-1A) intracompany transferees.
See more on L-1A HERE. A multinational
manager or executive may qualify for priority worker status if he
or she has been employed outside the United States in a managerial
or executive capacity for at least one of the three years immediately
preceding the filing of the petition, or, in the case of a foreign
worker presently in the United States, one of the three years preceding
entry to the United States as a nonimmigrant. The regulations
require the qualifying employment to have been outside the United
States and in a managerial or executive capacity. The past
employment must have been with the same employer, an affiliate,
or a subsidiary of the employer. The foreign worker must be
coming to work in an executive or managerial capacity. EB-2 There are two subcategories of the EB-2 Preference classification: workers who are members of the professions holding advanced degrees or their equivalent, and workers who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States. Members of the professions holding advanced degrees -- Any U.S. employer can file a petition in this category when the job requires an advanced degree and the alien possesses such a degree. Typically this will be done as part of the labor certification process, described below. Workers of Exceptional Ability -- For the purpose of showing eligibility for EB-2 classification as a worker of exceptional ability in the sciences, arts (including athletics), or business, the individual must have a degree of expertise significantly above the ordinary. This is established by satisfying at least three of the following six criteria:
EB-2 cases will often involve an approved PERM labor certification (explained below). There are, however, two exceptions to the labor certification requirement. If the alien will serve the national interest, labor certification may be waived ("National Interest Waiver"). The second exception to the labor certification requirement is for workers under Schedule A found at 20 CFR §656.22. The EB-3 classification includes skilled workers (jobs for which at least two years of experience are required); professionals (baccalaureate degree required for position); and other workers (less than two years’ experience required for position). EB-3 beneficiaries must be beneficiaries of an approved labor certification filed on their behalf by a US employer with an available position that cannot be filled by a US worker. Labor Certification: Labor certification is the determination by the Department of Labor (DOL) that there are no U.S. workers willing, qualified, and available for the position for which a labor certification is being sought. The current labor certification process is known as the PERM process. In many cases, the sponsored position is the same job in which the foreign national is already employed on a temporary basis (typically pursuant to E, L-1B, H, or TN status), although a future position may also be the basis of a PERM case. A PERM case involves testing the job market in the area of the work site. PERM requires employers to perform their own, unsupervised recruitment, which can involve newspaper advertisements, Internet postings, and job fairs. Employers must be able to document, if required, that the case meets the appropriate minimum requirements and prevailing wage level, as well as that the proper recruitment efforts during the preceding six-month period. The application is adjudicated by the regional office of the federal DOL. The PERM Labor Certification process is undoubtedly the most complex process existing within the realm of immigration law and its rules are regularly in flux. A detailed description of all of the relevant issues involved in a labor certification case would fill many web pages. The attorneys of ILG have successfully processed hundreds of labor certification cases across the US. For more information on this process, CONTACT ILG.
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