EB1-1 Extraordinary Ability

Extraordinary ability is defined as a level of expertise obtained only by that small percentage of foreign nationals at the very top of their field of endeavor. An EB-1 (Extraordinary Ability) Immigrant Petition must be accompanied by evidence that the foreign national has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.

A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.

Such evidence shall include evidence of a one-time achievement (that is, a major, international recognized award), or at least three (3) of the following:

• Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
• Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
• Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
• Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
• Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
• Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
• Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases;
• Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
• Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
• Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.

Neither an offer for employment in the United States nor a labor certification is required for this classification; however, the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States.

In order to prepare an EB-1 petition, the following information is generally needed:

1. A statement describing the field of expertise and contributions to the field
2. Reference letters
3. Curriculum Vitae
4. Corroborating Documentation

EB1-2 Outstanding Researcher/Professor

To qualify for classification as an Outstanding Researcher or Professor, an individual must be able to document that:

1. S/he is recognized internationally as outstanding in a specific academic area,
2. S/he has at least three (3) years of experience in teaching or research in the academic area, and
3. S/he seeks to enter the United States:
   • for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,
   • for a comparable position with a university or institution of higher education to conduct research in the area, or
   • for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least three (3) persons full-time in research activities and has achieved documented accomplishments in an academic field.
4. Academic field is defined as a body of specialized knowledge offered for study at an accredited United States university or institution of higher education. Permanent, in reference to a research position, means either tenured, tenure-track, or for a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination.
5. Initial evidence must include at least two (2) of the following:
   • Documentation of receipt of major prizes or awards for outstanding achievement in the academic field;
   • Documentation of membership in associations in the academic field which require outstanding achievements of their members;
   • Published material in professional publications written by others about the applicant’s work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;
   • Evidence of participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
   • Evidence of original scientific or scholarly research contributions to the academic field; or
   • Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

As evidence that the applicant has at least three (3) years of experience in teaching and/or research in the academic field, experience in teaching or research while working on an advanced degree will only be acceptable if the applicant has acquired the degree, and if the teaching duties were such that s/he had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. Evidence of teaching and/or research experience shall be in the form of letter(s) from current or former employer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the applicant.

The outstanding researcher/professor petition must also include:

1. An offer of employment from a prospective United States employer. A labor certification is not required for this classification.
2. The offer of employment shall be in the form of a letter from:
   • A United States university or institution of higher learning offering the applicant a tenured or tenure-track teaching position in the applicant’s academic field;
   • A United States university or institution of higher learning offering the applicant a permanent research position in the applicant’s academic field; or
   • A department, division, or institute of a private employer offering the applicant a permanent research position in the applicant’s academic field. The department, division, or institute must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in an academic field.

EB1-3 Multinational Manager & Executive

The Multinational Executive or Manager (or EB1-3) category is designed for employees who have been offered a regular full-time position, in a managerial or executive capacity, with a U.S. employer who has been doing business in the United States for at least one year, and also worked for a qualifying employer abroad, in a managerial or executive capacity for one of the three years prior to entering the United States in nonimmigrant status. Qualifying employers are typically the same, an affiliate, a subsidiary, or a parent company of the U.S. employer. To determine if the position qualifies as managerial, the duties both abroad and in the offered U.S. position must involve:

1. Managing the organization, or a department, subdivision, function, or component of the organization;
2. Supervising and controlling the work of other supervisory, professional, or managerial employees, or managing an essential function within the organization; or a department or subdivision of the organization;
3. Having the authority to hire and fire or recommend those, as well as other personnel actions, (such as promotion and leave authorization) if another employee or other employees is/are directly supervised;
4. Exercising discretion over the day-to-day operations of the activity or function for which the employee has authority.

To determine if the position qualifies as executive, the duties both abroad and in the offered U.S. position must involve:

1. Directing the management of the organization or a major component or function of the organization;
2. Establishing the goals and policies of the organization, component, or function;
3. Exercising wide latitude in discretionary decision-making; and
4. Receiving only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

Note that in both categories, the position must primarily be managing or directing the hands-on or day-to-day functions of the company, rather than doing these functions themselves.

The green card process for this category involves the employer completing and filing a “Preference Petition” with U.S. Citizenship & Immigration Services (USCIS). Estimated processing time averages about four (4) to twelve (12) months depending on employer location.

If a visa number is available, the individual may proceed to the final step, which is the actual application for green card status. This application may take the form of (1) an application to adjust status, which may be filed concurrently with the preference petition mentioned above as long as an immigrant visa number is available or (2) an application for an immigrant visa, which must be filed and adjudicated (with a personal interview) by a U.S. consul outside the U.S. The choice of which path to follow is highly dependent on individual facts and circumstances.

In the interim, many choose to obtain a temporary L-1 visa, which permits the holder to live and work in the U.S. while waiting for the green card process to be completed.

EB-2 Advanced Degree, Exceptional Ability, National Interest Waiver

The employment-based, second preference (EB-2) immigrant visa category is intended for foreign professionals with an advanced degree or its equivalent or a foreign national who possesses exceptional ability.

Basic Requirements:

The essential requirements vary based on the Advanced Degree, Exceptional Ability and National Interest Waiver sub-categories:

• Advanced Degree:
  • The job must require an advanced degree.
  • The applicant must possess the required advanced degree or its equivalent (a Bachelor’s degree plus five years of progressive work experience).
• Exceptional Ability
  • Applicant must be able to show exceptional ability in the sciences, arts, or business.
  • Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences arts or business.”
• National Interest Waiver
  • National interest waivers are often issued for those who have exceptional ability and whose employment would be beneficial for the U.S.
  • Those that qualify can self-petition.
• To qualify for Exceptional Ability and a National Interest Waiver, in addition to the above, the applicant must meet three (3) of the following criteria:
  • Official academic record indicating that the applicant has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to his/her area of exceptional ability.
  • Letters documenting at least ten years of full-time experience in his/her occupation.
  • A license to practice, or certification, for the profession or occupation.
  • Salary or other remuneration for services that demonstrate applicant’s exceptional ability.
  • Professional association membership.
  • Recognition of achievements and significant contributions in the field, by peers, government entities, professional or business organizations.
  • Similar evidence of eligibility is also acceptable.

The green card process for this category involves the employer completing and filing a “Preference Petition” with U.S. Citizenship & Immigration Services (USCIS). Estimated processing time averages about six (6) to twelve (12) months depending on employer location.

If a visa number is available, the individual may proceed to the final step, which is the actual application for green card status. This application may take the form of (1) an application to adjust status, which may be filed concurrently with the preference petition mentioned above as long as an immigrant visa number is available or (2) an application for an immigrant visa, which must be filed and adjudicated (with a personal interview) by a U.S. consul outside the U.S. The choice of which path to follow is highly dependent on individual facts and circumstances.

EB-3 Professional, Skilled & Other Workers

The employment-based third (EB-3) preference immigrant visa category is intended for professionals, skilled workers, and other workers.

• “Skilled workers” are persons whose job requires a minimum of two years of training or work experience.
• “Professionals” are persons whose job requires at least a U.S. bachelor’s degree or a foreign degree equivalent and are a member of the professions.
• “Other workers” is a category for persons who perform unskilled labor that requires less than two years of training or experience.

Basic Requirements:

• Labor Certification and a permanent full-time job offer. The employer must show that that the applicant will be performing work for which qualified workers are not available in the U.S.
• If the Foreign National (FN) is a Skilled Worker, the applicant must have at least two years of job experience or training and perform work for which there are not qualified workers are not available in the U.S.
• To qualify as a professional, the FN must possess a bachelor’s degree or equivalent foreign degree. In addition, a bachelor’s degree must be required for entry into the occupation.
• If applying under the Unskilled Workers subcategory, the FN must be capable of performing unskilled labor, which is not of a temporary or seasonal nature.

In addition to obtaining approval of an application for Permanent Employment Certification from the Department of Labor (DOL), the green card process for this category involves the employer completing and filing a “Preference Petition” with U.S. Citizenship & Immigration Services (USCIS). Estimated processing time averages about six (6) to twelve (12) months depending on employer location, in addition to the time it takes to secure Certification from DOL (see https://icert.doleta.gov/index.cfm?event=ehGeneral.dspProcessingTimes.

If a visa number is available, the individual may proceed to the final step, which is the actual application for green card status. This application may take the form of (1) an application to adjust status, which may be filed concurrently with the preference petition mentioned above as long as an immigrant visa number is available or (2) an application for an immigrant visa, which must be filed and adjudicated (with a personal interview) by a U.S. consul outside the U.S. The choice of which path to follow is highly dependent on individual facts and circumstances.

EB-4 Religious Worker

The employment-based fourth (EB-4) preference visa intended for “special immigrants” including religious workers. Ministers and non-ministers in religious occupations and vocations can immigrate to the U.S. to perform religious work in a full-time compensated position.

Basic Requirements:

• There are 5,000 special immigrant non-minister religious worker visas available every fiscal year. There is no cap for those coming to work as ministers.
• The special immigrant religious worker must be a member of a religious denomination that has a bona fide non-profit religious organization in the U.S. for at least two years.
• The special immigrant religious worker is coming to the U.S to work in a full-time compensated position:
  • As a minister of the religious denomination,
  • in a religious vocation either in a professional or nonprofessional capacity, or
  • In a religious occupation either in a professional or nonprofessional capacity.
• The special religious worker must demonstrate that s/he has been working in either one of the three occupations mentioned above, after the age of 14, in the U.S. or abroad. This work must have been uninterrupted for two years prior to the petition. If there a break in the preceding two years, the religious worker will need to show that:
  • S/he was still employed as a religious worker;
  • The break did not exceed two years; and
  • The break was due to further religious training or for a sabbatical.
• The special immigrant religious worker is coming to work for either a bona fide non–profit religious organization in the U.S, or a bona fide organization affiliated with the religious denomination in the U.S
• The employing non-profit religious organization must provide the following supporting documents:
  • Proof of the organization’s tax-exempt status
  • Evidence of the religious worker’s salaried or non-salaried compensation
• The special immigrant religious worker is required to provide the following supporting documents:
  • Proof of membership to the religious denomination
  • Evidence to establish that the religious worker is qualified to perform the duties of the position. A Religious worker coming to work as a minister must provide:
    • A copy of his or her certificate of ordination or other similar documents.
    • Evidence that religious denomination accepted the religious worker’s qualifications.
    • Evidence of religious worker’s completion of theological studies at an accredited theological institution that is required or recognized by the religious worker’s religious denomination.
    • If the religious denomination does not require theological studies, the religious worker must provide:
      • The religious denomination requirements for the ordination of ministers;
      • A list of duties performed by ordain ministers;
      • The denomination’s levels of ordination, if any; and
      • Evidence that the religious worker met the religious denomination’s requirements for ordination.
  • Proof of previous religious work either abroad or in the U.S.
  • If the previous job was in the U.S. and the position was compensated, the religious worker needs to document receipt of the salary. The religious worker can provide, for example, Form W-2 or copies of filed income tax returns.
  • If the previous job was in the U.S and the religious worker received non-salaried compensation, the religious worker needs to provide, if available, IRS documents indicating the non-salaried compensation. However, when IRS documents are not available, the religious worker needs to explain why and offer similar verifiable documentation.
  • If the religious worker received no salary but supported him or herself and any dependents, he/she needs to provide valid documents to show how support was maintained.
  • If the previous job was abroad, the religious worker needs to provide comparable evidence of the religious work.

Dependent Family Members:

• Dependents including legal spouses and children under 21 years of age, may accompany or join the religious worker or adjust status in the U.S.

Procedure:

The green card process for this category involves the employer completing and filing a “Preference Petition” with U.S. Citizenship & Immigration Services (USCIS). Estimated processing time averages about six (6) to twelve (12) months depending on employer location.

If a visa number is available, the individual may proceed to the final step, which is the actual application for green card status. This application may take the form of (1) an application to adjust status, which may be filed concurrently with the preference petition mentioned above as long as an immigrant visa number is available or (2) an application for an immigrant visa, which must be filed and adjudicated (with a personal interview) by a U.S. consul outside the U.S. The choice of which path to follow is highly dependent on individual facts and circumstances.

EB-5 Immigrant Investor

Lawful Permanent Residence may be gained by qualifying in the business-related Fifth Preference (EB-5) immigrant visa category as an investor in an employment-creating new enterprise. This category is an option for foreign investors seeking the opportunity to live and work in the U.S. permanently.

Two EB-5 programs exist: (1) an Individual program; and (2) a Regional Center program.

To qualify for permanent residence under the Individual program, the applicant must:

1. invest in a new commercial enterprise;
2. document investment of at least $1.8 million (or $900,000 in certain cases) into the business; and
3. create employment for at least ten (10) full-time U.S. workers.

The investment may consist of the contribution of various forms of capital, including cash, equipment, inventory, property and other tangible equivalents. An investment amount of $1 million is generally the minimum. However, an investment of $900,000 is acceptable if the business is situated in a “targeted” employment area, that is one that has experienced unemployment of at least 150% of the national average rate, or a rural area as designated by the U.S. Office of Management and Budget. In meeting the investment amount, an infusion of new capital (not merely a retention of profits of the enterprise) is required.

The other EB-5 program is the Regional Center program. This is ideal for the retiree or inactive investor because of its “indirect employment” feature. The Regional Center program removes the ten (10) full-time workers requirement and substitutes it with a less restrictive “indirect employment creation” requirement, allowing the investor to qualify by proving a combination of ten (10) direct and/or indirect employees who are new to the Regional Center.

The EB-5 program policy management requirement is minimal. An investor in the Regional Center program may be a limited partner and still qualify as long as the limited partners have a policy-making role. For those who are not interested in day-to-day management or running an active business, Regional Center programs offer a more inactive form of investment than do individual program investments. Regional Center programs also do not require that the investor live in the location of the investment. Instead, the investor can live anywhere in the U.S.

The U.S. Citizenship & Immigration Services (“USCIS”) gives priority to Regional Center program petitions, often leading to a quicker approval. Each Regional Center program must be pre-approved by USCIS in order to be eligible as a vehicle for EB-5 lawful permanent residence.

To obtain lawful permanent residence through investment, the applicant must present evidence that traces the legally obtained funds invested through bank transfer and other acceptable documentation from the investor directly to the investment enterprise. The money can be the investor’s own funds or those obtained in the form of a loan or gift.

After the applicant completes a comprehensive business and financial due diligence analysis of the viability of a Regional Center program investment, the applicant makes the investment and files a petition with USCIS for EB-5 status. Processing time, subject to change, is approximately eighteen (18) months.

If the applicant is legally present in the U.S., s/he then files an application to adjust status with USCIS. Processing time is approximately nine (9) to twelve (12) months and generally does not require an interview. If the applicant resides abroad, an immigrant visa application is made at the U.S. consulate having jurisdiction over the applicant’s residence and an interview is required. Processing time is essentially the same as that of an application to adjust status. With either the Individual or Regional Center program options, total processing time is approximately twenty-seven (27) to thirty (30) months. Processing time however does vary depending on case-by-case circumstances.

Once EB-5 lawful permanent residence is granted, it is conditional for a period of two (2) years. In the ninety (90) day window leading up to the expiration of the conditional status, the investor must file another petition to satisfy the USCIS that the investment has been made or is still in place and the employment requirement has been fulfilled or maintained.

Once the conditions are removed, a full green card is granted documenting lawful permanent resident status. From the filing of the conditional green card application through approval of the petition to remove the conditions on lawful permanent residence, investors should estimate time of approximately five (5) years. Thereafter and depending on the terms of the investment agreement, investors in Regional Center programs may sell their investment and still maintain their green cards.