Employment Based Immigrant Visa

General

  • EB-1: Priority workers
    • EB-1(1) – Aliens with extraordinary ability in the sciences, arts, education, business or athletics
    • EB-1(2)-Outstanding professors and researchers
    • EB-1(3)-Certain multinational executives and managers
    • No labor certification required. May file I-485s concurrently with I-140s if visa numbers are available
  • EB-2: Aliens holding advanced-degrees or aliens of exceptional ability in sciences, art, or business (* Labor certification required unless National Interest Waiver (NIW) obtained)
  • EB-3: Skilled workers with at least 2 years training or experience, professionals with baccalaureate degrees, and other workers with less than 2 years training or experience (*Labor certification always required unless the occupation is on Schedule A)
  • EB-4: Certain special immigrants
  • EB-5: Employment creation

EB-1(1) Extraordinary Ability

  • Aliens with “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.”
  • Need to show that the alien is one of “that small percentage who have risen to the very top of the field of endeavor.”
  • Evidence:
    • Major award recipient (Nobel Prize, Olympic Medals, Academy Award, Grammy, etc.) OR three of the following ten:
      • Receipt of lesser nationally or internationally recognized prizes or awards for excellence
      • Membership in associations in the field which demand outstanding achievement of their members
      • Published material about the alien in professional or major trade publications or other major media
      • Evidence that the alien has judged the work of others, either individually or on a panel
      • Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
      • Evidence of the alien’s authorship of scholarly articles in professional or major trade publications or other major media
      • Evidence that the alien’s work has been displayed at artistic exhibitions or showcases
      • Performance of a leading or critical role in distinguished organizations
      • Evidence that the alien commands a high salary or other significantly high remuneration in relation to others in the field
      • Evidence of commercial successes in the performing arts

EB-1(2) Outstanding Professors and Researchers

  • Aliens are recognized internationally for their outstanding academic achievements in a particular field
  • Have three years experience in teaching or research in that academic area
  • Seek entry for a tenure or tenure track teaching or comparable research position
  • Employer is a university or other institution of higher education. If the employer is a private company rather that a university or educational institution, the department, division, or institute of the private employer must employ at least three persons full time in research activities and have achieved documented accomplishments in an academic field
  • Evidence: at least two of the following six:
    • Receipt of major prizes or awards for outstanding achievement
    • Membership in associations that require their members to demonstrate outstanding achievements
    • Published material in professional publications written by others about the alien’s work in the academic field
    • Participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
    • Original scientific or scholarly research contributions in the field
    • Authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

EB-1(3) Multinational Executives and Managers

  • Employed outside the U.S. in the three years preceding the petition for at least one year by with the same employer, an affiliate, or a subsidiary of the US employer
  • The positions abroad and in the US both meet either Executive or Managerial Capacity defined as:
    • Executive capacity – means an assignment within an organization in which the employee primarily:
      • Directs the management of the organization or a major component or function of the organization
      • Establishes the goals and policies of the organization, component, or function
      • Exercises wide latitude in discretionary decision-making
      • Receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization
    • Managerial capacity – means an assignment within an organization in which the employee primarily:
      • Manages the organization, or a department, subdivision, function, or component of the organization
      • Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization
      • If another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed
      • Exercises direction over the day-to-day operations of the activity or function for which the employee has authority

EB-2 Aliens Holding Advanced Degrees or of Exceptional Ability

  • Exceptional ability – similar but less stringent than Extraordinary Ability. Needs to show three of the following:
    • An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
    • Advanced degree – Master’s degree (or higher) or, in certain cases, a Bachelor’s degree plus five years of progressively responsible experience
    • Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought
    • A license to practice the profession or certification for a particular profession or occupation
    • Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability
    • Evidence of membership in professional associations
    • Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations
  • Labor certification required unless National Interest Waiver (NIW) obtained
  • NIW not defined in statutes or regulations
  • Matter of New York Dep’t of Transportation (NYSDOT):
    • Area of substantial intrinsic merit
    • Benefit national in scope
    • Benefit outweighs national interest of protecting jobs of U.S. workers

EB-3 Skilled workers, professionals, and other workers

  • Generally, Aliens must obtain labor certifications from the Department of Labor that:
    • There are not sufficient U.S. workers who are able, willing, qualified, and available to do the work, y
    • The employment of the alien will not adversely affect the wages and working conditions of US workers similarly employed
  • Traditional Labor Certification – Ended on March 28, 2005
  • PERM Labor Certification
    • Effective on March 28, 2005
    • Electronic review of labor certification applications
    • No supporting documentation submitted at time of filing
    • Employer must retain supporting documentation for 5 years from the time of filing
    • Possibility of a 45-60 day processing time. Current processing times are 3 months with no audit and 16-18 months with an audit.
    • Obtain prevailing wage determination from DOL
    • Require pre-filing recruitment
      • Nonprofessionals
        • 30-day job order with DOL
        • 2 Sundays ads in the largest local newspaper
        • Notice of Filing
      • Professionals
        • 30-day job order with DOL
        • 2 Sunday ads in the largest local newspaper
        • One Sunday ad may be substituted with a journal ad if job requires advanced degree and experience
        • Notice of Filing
        • 3 additional recruiting from a list of 10 possible choices
      • College and University Teachers
        • Need to prove alien is more qualified than the US workers who applied
        • May choose regular recruitment for professionals or the optional special recruitment
        • Competitive recruitment and selection process
        • At least one ad in a national professional journal
      • Must be filed within 18 months after a selection is made
  • All recruitment must be done 30 – 180 days prior to filing of application except that one of the additional steps for professionals may be done within 30 days
  • If layoffs occur within 6 months of filing application in listed occupation or related occupation, must notify and consider all potentially qualified laid-off US workers
  • Recruitment report
  • Setup online account with DOL
  • Applications may be filed on-line or by mail
  • Certify, audit or order supervised recruitment
  • Audit process
  • Random pick or based on the information in the application
  • Must respond within 30 days of audit request
  • Substantial failure to respond may result supervised recruitment for 2 años
  • Revocation of approved labor certification upon finding that certification was not justified – No time limit
  • DHS or DOS may invalidate labor certification for fraud/misrepresentation

Recursos adicionales