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Immigration Under the Trump Administration

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Employment-Based Permanent Visas

Employment-based visas are divided into five preference categories:

First Preference (EB-1)

Priority Workers - Individuals with extraordinary ability, outstanding professors and researchers, and multinational executives and managerial intracompany transfers.

 

EB-1 Priority Workers

The EB-1 category is open to:

  • Individuals with extraordinary ability in the arts, sciences, education, business or athletics
  • Outstanding professors or researchers
  • Managers and executives soon to be transferred to the US

Individuals with Extraordinary Ability

USCIS defines this category of foreign nationals as “individuals 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.” Also, the petitioner’s entry into the US based on extraordinary ability must “substantially benefit prospectively the United States.”

To apply for this category you must submit evidence of a one-time achievement such as a major internationally recognized award (like a Nobel Prize) or at least three of the following requirements as proof with your completed application to USCIS:

  • Receipt/Proof of lesser recognized prizes or awards for excellence
  • Membership in association in your field of expertise which demands outstanding achievement of its members
  • Articles published about you in major publications and other media
  • Proof that you have judged others’ works as an individual or on a panel
  • Proof that you have made original contributions to your field
  • Proof that you have published articles about your field in major publications and other media
  • Proof that your work has been showcased or displayed in exhibitions
  • Proof that you hold a leading or critical role in a distinguished organization
  • Proof that you receive high payments for your work in relation to your peers
  • Proof of commercial success in the performing arts

Note: Comparable evidence is acceptable in certain situations.

Outstanding Professors and Researchers

To be classified as an outstanding professor or researcher, you must:

  • Be internationally recognized in your field;
  • Have at least three years’ experience in research or teaching in your academic area; and
  • Have a job offer from an accredited university / institution for higher education to work in a tenure-track teaching / comparable research program. The job offer can also be for a permanent research position at a private institution, provided the department employs at least three full-time researchers and has achieved documented accomplishments in an academic field.

To apply under this category, you must be “recognized internationally as outstanding in the academic field” as evidenced by documentation of at least two of the following:

  • Receipt of major prizes or awards for outstanding achievement
  • Membership in associations in your profession, which demands outstanding achievement from their members
  • Articles about your work that have appeared in major publications
  • Proof that you have judged others’ work in the same area or allied academic field
  • Proof that you have made original scientific or scholarly research contributions to your field
  • Proof that you have authored scholarly books or articles (in scholarly journals with international circulation) in the field

Multinational Managers and Executives

The EB-1 category allows multinational companies to transfer their executives or managers to the US from their parent and affiliate offices outside the US.

To apply as a multinational manager or executive, you must have documents proving that:

  • You have worked as a manager or executive in an overseas office of your US sponsor for at least one out of three years preceding the transfer to the US
  • You will be joining the sponsoring US company as an executive or manager.
  • The sponsoring US company must show that it has been a parent or affiliate branch office of the company overseas and conducted business for at least one year prior to your filing

Procedure for Applying for an EB-1 Visa

Individuals with extraordinary ability may self-petition and do not need a sponsoring employer to apply for their visa. All other EB-1 visa petitions must be filed by the sponsoring employer.

Note: Labor Certification is not required for EB-1 petitions. In order to apply under the EB-1 category, you have to submit a completed application (USCIS Form I-140, Petition for Alien Worker) along with all supporting documents at the designated USCIS Center that has jurisdiction over the area of your proposed employment.

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Second Preference (EB-2)

Members of professions holding advanced degrees or who exhibit exceptional ability in the sciences, arts or business and who will prospectively benefit the US.

 

EB-2 Professionals with Advanced Degrees or Persons with Exceptional Ability

The EB-2 classification is open to:

  • Individuals with exceptional ability in the sciences, arts or business
  • Professionals with advanced degrees
  • Physicians intending to practice medicine in under-served areas

Individuals with Exceptional Ability in the Sciences, Arts or Business

USCIS defines “exceptional ability” in the sciences, arts or business as “a degree of expertise significantly above that ordinarily encountered.”

To apply under the EB-2 category, you must submit at least three of the following with your application:

  • Proof of your academic achievements in the area of your expertise, including diplomas and degrees from colleges, universities or institutions
  • Letter from current or former employer attesting to the fact that you have at least 10 years of full-time experience in your field
  • License to practice your profession or certification in a particular profession
  • Proof that you have received a salary demonstrating exceptional ability
  • Proof that you are a member of one or more professional associations
  • Proof that you have received recognition from peers, government officials, or organizations for achievements and significant contributions you have made in your field

If the above documentation requirements do not apply to your occupation, you may provide other comparable evidence. This employement-based visa category does require labor certification unless a national interest waiver is granted.

Professionals with Advanced Degrees

USCIS defines an advanced degree as “a professional or academic degree, given by a US institution, beyond that of a baccalaureate” (i.e. above a bachelor’s degree).

A foreign degree from an overseas institution is acceptable only if USCIS determines that the degree is equivalent to a US degree.

To apply for an EB-2 immigrant visa, you must provide evidence to prove that:

  • You have an advanced degree given by a US institution or an equivalent foreign degree; or
  • You have a US bachelor’s degree or its foreign equivalent with letters from current or former employers showing that you have five years of experience, involving incremental responsibility in that profession. This is necessary if the position offered required an advanced degree.

A petition for an applicant holding an advanced degree can be made when a position requiring an advanced degree becomes available in the US The labor certification must indicate that the job offered requires your degree to perform the job.

Qualified Physicians

If you are a qualified physician who will be practicing in a “medically underserved area,” you may be eligible to apply for an employment-based visa under the EB-2 and qualify for a national interest waiver.”

National Interest Waiver

If you can show exceptional ability in the sciences, arts or business, you may qualify to waive the requirement of a job offer and labor certification if a waiver would be in the national interest

Any physician may petition for a national interest waiver to waive the labor certification requirement. While the statutory language references “any physician,” CIS notes that DHHS currently limits physicians in designated shortage areas to the practice of family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry. Unless DHHS establishes shortage areas in other fields of medicine, only doctors practicing in the fields mentioned above are eligible.

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Third Preference (EB-3)

Skilled workers performing work that requires at least two years’ experience, professionals holding a bachelor’s degree or higher, and other workers performing unskilled labor.

 

EB-3 Skilled or Professional Workers

The EB-3 category includes:

  • Individuals with at least two year experience as skilled workers
  • Professions with a bachelor’s degree
  • Unskilled laborers who possess less than two years of experience with work for which US workers are not available

Documents required for an EB-3 Visa

To apply for EB-3, the following are required:

  • A job offer from your US employer which states that he/she is hiring you for a job for which you have the requisite training/education
  • Labor Certification (Form ETA-750) from the US Department of Labor

Note: Without exception, all EB-3 applications must include both a Labor Certification and a job offer. The type of job and your background determines whether you are classified as “skilled,” “unskilled,” or “professional.”

To qualify as:

  • Skilled: You must show evidence of capability in an occupation that requires at least two years of training or experience in your skill set.
  • Professional: You must show evidence of a US bachelor’s degree (or its foreign equivalent) to join the profession. Experience and education cannot be substituted for the degree.
  • Other Workers: You must show that you have less than two years of higher education, training, or experience.

Note: This category is often backlogged, which translates into extended wait times before a visa becomes available.

How to Apply for an EB-3 Visa:

  • Your employer must obtain an approved Labor Certification (Form ETA-750), which mentions that the position offered requires the education, training or experience that you possess.
  • After the Labor Certification has been approved, your employer must file Form I-140 (Petition for Alien Workers) on your behalf.

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Fourth Preference (EB-4)

A catch-all category including, but not limited to, juveniles declared dependent by a juvenile court, qualified foreign medical graduates, returning residents, U.S. government employees, Panama Canal Treaty Employees, and foreign nationals practicing in specialized areas including clergy and religious workers.

 

EB-4 Special Immigrants

Religious workers

You must be a member of a religious organization that has a nonprofit religious unit in the US and meet the following criteria:

  • You must have been working in the religious organization for at least two years before applying.
  • You must be entering the US to work full time in one of the following capacities:
    • As a minister or priest of a religious organization
    • In a religious vocation or occupation for a religious organization that requires you to have a bachelor’s degree (or its foreign equivalent)
    • In a religious vocation or occupation for a religious organization or its nonprofit affiliate. The term religious vocation refers to cantors, missionaries, religious instructors, etc.

Documents required for an EB-4 Religious Worker Visa:

Along with submitting Form I-360, to be EB-4, you are required to provide the following:

  • Proof that your religious organization is a nonprofit organization
  • An official letter from your religious organization in the US stating:
    • You have been a member of the denomination for at least two years
    • You have at least two years’ experience in your vocation or occupation
    • How you will be paid for your work
    • You do not intent to supplement your income with a second job or depend on charity for support
    • Details of your proposed employment (see table below)
Type of Job Letter Should State
Minister That you have been authorized to perform religious duties and specify each duty.
Other religious vocation or occupation That you have a US bachelor’s degree (or its foreign equivalent) that is required for your religious profession. An official academic record must also be submitted.
Religious professional That you are qualified to work in that religious vocation or occupation. For example, if you are applying to work as a nun or a monk, you must provide evidence you are a nun or a monk.
Non-ministerial or non-professional capacity for a religious organization affiliated with a religious denomination. How the religious organization is affiliated with the denomination.

Special Immigrant Juveniles

To qualify as a Special Immigrant Juvenile, the following conditions must be met:

  • Child has been declared dependent by a juvenile court in the U.S. or has been placed by such a court in the custody of a state agency, entity or an individual;
  • Juvenile court determines that reunification of the child with one or both of his parents is not viable based on neglect, abandonment, abuse or a similar basis under state law;
  • A judicial or administrative body declares that it would not be in the child’s best interest to be returned to his country, his parent’s country, or the country of his last habitual residency.

A child meeting the criteria above may adjust status to lawful permanent residency as long as the child’s dependency order remains valid, he applies for adjustment of status before the age of 21, and remains unmarried at the time of adjustment of status.

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Fifth Preference (EB-5)

Employment creation - Foreign nationals investing a $500,000 to $1,000,000 in the US and creating employment for at least 10 full-time employees.

 

EB-5 Immigrant Investors

Individuals seeking permanent residence in the US based on establishing commercial enterprise (business) can apply for Investor Visas or EB-5 visas.

To qualify for EB-5, you must:

  • Established a business.
  • Be actively involved in the business.
  • Invested at least $1 million (USD) in the business ($500,000 USD is acceptable in certain designated areas) which can be in cash, equipment, inventory, etc.
  • Engaged in business that benefits the US economy.
  • Created full-time employment for at least 10 US workers.

Qualified EB-5 investors are subject to “conditional” permanent residence for a two-year period. During the condition period, the EB-5 investor must continuously meet the legal requirements for such investors. 90 days before the second anniversary of the EB-5 investor’s admission to the US as a conditional permanent resident, Form I-829 must be filed to remove this provisional condition.

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For more employment-based visa information, please contact us.

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