Employment Immigration

(1) Multinational Managers and Executives

To qualify under the Multinational Manager and Executive priority worker category, the worker must have worked for the petitioner (or a subsidiary of affiliate of the petitioner) outside the U.s. for at least one year of the previous three. If the worker is already in the U.S., the required one year of employment in the past three will be determined by looking at the three years prior to the workers entry into the U.S. in nonimmigrant status. This work outside the U.S. must have been in an executive or managerial capacity, and the worker must be coming to the U.S. to fill an executive or managerial job. The U.S. business must have been established for at least one year before filing the petition. First line supervisor do not necessarily count as managers even if they are directly managing the work of other employees. To qualify, the manager must be supervising other professional.

(2) Outstanding Professor and Researcher Petitions

To qualify in the Outstanding Professor and Researcher priority worker category, the applicant must be internationally recognized for his or her outstanding achievement. In this category, the worker must have a job offer, but no labor certification is required.

The outstanding professor or researcher must demonstrate two of the following criteria:

  • Receipt of a major prize or award for outstanding achievement in the academic field;
  • Membership in associations that require outstanding achievements of their members;
  • Published material in professional publications written by others about the applicant’s work;
  • Participation as a judge of the work of others in the field;
  • Original scientific or scholarly contributions in the field; or
  • Authorship of scholarly books or articles in journals with international circulation.

(3) Extraordinary Ability Petitions

The Extraordinary Ability priority worker category does not require a job offer. This means that either an employer may petition for an EB-1 extraordinary worker or the worker may petition for himself or herself. If the worker self-petitions, he or she must show evidence of contracts or prearranged commitments for future employment or a description of how he or she will continue to be gainfully employed in the U.S.

USCIS regulations define extraordinary ability as a “level of expertise indicating that the individual is one of a small percentage that has risen to the very top of the field of endeavor.” The statutes state that this level of ability must be demonstrated by sustained national or international acclaim and by recognition in the field by extensive documentation. USCIS will look for evidence that the work the individual will perform will substantially benefit the U.S.

In order to demonstrate extraordinary ability, the applicant must show that his or her ability has been recognized in the field of endeavor through sustained acclaim. This can be shown through a single major internationally recognized achievement such as a Nobel Prize, Pulitzer Prize or an Academy Award. Alternatively, the applicant can demonstrate three of the following ten criteria:

  • Receipt of lesser national or international prizes or awards for excellence in their field of endeavor;
  • Membership in associations in the field of endeavor that require outstanding achievements of their members as judged by recognized national or international experts;
  • Published material about the alien and his work in professional journals, trade publications, or the major media;
  • Participation, either in a group or alone, as a judge of others in the same or a similar field;
  • Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor;
  • Authorship of scholarly articles in the field, published in professional journals or the major media;
  • Display of the alien’s work at artistic exhibitions or showcases in more than one country;
  • Performance in a lead, starring, or critical role for organizations with a distinguished reputation;
  • Commanding a high salary compared to others in the field; or
  • Commercial success in the performing arts, as shown by box office receipts and sales.

Realizing that these ten categories of evidence do not encompass all the evidence that could be presented to show extraordinary ability, USCIS also allows for any other comparable evidence.

(1) Advanced Degree Professionals

The second preference employment category is reserved for two types of workers: (1) workers who are members of professions holding advanced degrees or their equivalent and (2) workers with exceptional ability in the sciences, arts, or business who will substantially benefit prospectively the national economy, cultural or education interests, or welfare of the U.S. As a general rule, a labor certification is required, although in some cases a national interest waiver is available.

A profession is an occupation in which a baccalaureate degree is the minimum requirement for entry level. An advanced degree is any academic or professional degree above the level of a baccalaureate degree. The individual seeking EB-2 classification must be entering a job that requires an advanced degree and the individual must either possess an advanced degree or a baccalaureate degree plus five years of progressive experience in the field to substitute for the advanced degree.

Labor certification is required for EB-2 Advanced degree professionals unless a National Interest Waiver is obtained.

(2) Exceptional Ability in the Sciences, Arts or Business

An individual can obtain EB-2 classification for exceptional ability in the fields of art, sciences or business. Athletics are considered an art for purposes of EB-2 classification. Exceptional ability is limited to aliens in the fields of arts, science and business.

USCIS requires at least three of the following six types of evidence to show exceptional ability:

  • For advance degree EB-2s, official record of a degree from a college, university or other learning institution related to the field in which the alien claims exceptional ability;
  • For exceptional ability EB-2s, evidence of ten years of full time experience in the field in which employment is sought (typically in the form of letters from past employers);
  • A license to practice or certification if required in the occupation;
  • For exceptional ability cases, evidence of a high salary or other form of payment that indicates exceptional ability;
  • For exceptional ability cases, evidence of membership in professional associations; and
  • For exceptional ability cases, evidence of recognition by peers or professional associations for achievements and contributions to the field.

For exceptional ability EB-2 cases, labor certification is required unless a national interest waiver is obtained.

(3) National Interest Waiver Petitions

The EB-2 classification requires a labor certification by the petitioning employer unless a national interest waiver is obtained. To obtain a national interest waiver the applicant must demonstrate that granting the EB-2 petition is in the national interest.

There are two kinds of national interest waiver applications available. One type is for physicians and the other type is for all other cases. The Administrative Appeals Office has established seven main factors that are considered in determining whether a particular job is in the national interest:

  • Improvement of the U.S. economy;
  • Improvement of the wages and working conditions for U.S. workers;
  • Improvement of educational and training programs for U.S. children and under-qualified workers;
  • Improvement of health care;
  • Provision of more affordable housing for young, aged, or poor U.S. residents;
  • Improvement of the U.S. environment and more productive use of the national resources; and
  • Admission is requested by an interested U.S. government agency.

More recently, the Administrative Appeals Office has focused on three factors:

A physician national interest waiver is different from a standard national interest waiver. To be eligible for a physician national interest waiver, the foreign physician must:

  • Agree to work full-time in a clinical practice for five years unless the immigrant visa petition was filed prior to November 1, 1998, in which case the period of required service is 3 years;
  • Work in one of the following medical specialties: family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry;
  • Serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), Medically Underserved Area (MUA), or a Veterans Affairs facility; and
  • Obtain a determination from a federal agency or a state department of health that has knowledge of the physician’s qualifications, which states that the physician’s work is in the public interest.

A period of service in an underserved area can affect a physician’s ability to apply to adjust status. A physician can simultaneously file for adjustment of status when filing the I-140 petition unless green card numbers are not immediately available based on backlogs in the EB-2 category.

By applying for adjustment of status, the physician can also obtain an employment authorization document. This relieves the physician of having to maintain any type of valid nonimmigrant status. However, the physician may have an independent requirement to maintain H-1B status as part of a J-1 waiver service obligation.

While USCIS will allow the physician to apply for adjustment of status and obtain work authorization, USCIS will not make a final determination on any adjustment of status application submitted by a physician who is seeking a national interest waiver until the physician has practiced medicine full-time in a medically underserved area for an aggregate of 5 or 3 years, depending on the application filing date.

Upon receipt of the adjustment application on Form I-485, USCIS will note the date the physician began medical service, provide the physician with a list of evidence that must be submitted after the required period and provide the physician with a timeline by which the physician must send evidence to USCIS.

EB-3 (Skilled Workers, Professionals holding basic degrees)

This category is for individual workers who are 1) “Skilled”; A skilled worker is one who has at least two years of experience in the job offered by the sponsoring employer, 2) “Professionals” in that they have at least a Bachelors degree and will be working in a professional position for their employer, 3) other workers, including those with un-skilled jobs are also included in this category.

The individual worker will be required to have an employer offer permanent sponsorship. The individual worker will be required to show the law of U.S. worker availability via the Labor Certification process. The Labor Certification process is the prerequisite to filing with the USCIS for an immigrant benefit. The Labor Certification process is an expedited PERM process.

Once PERM is approved, the individual worker can proceed with the immigrant petition or adjustment of status. When the USCIS approved the petition and applicant’s visa priority date is available, the applicant can pursue permanent residency by either adjustment of status in the US or by consular processing at a US Consulate in their native country.

EB-4 (Religious Workers)

To be eligible for lawful permanent residence as a religious worker, you must be a religious worker for the past two years has been a member of a religious denomination which has a bona fide nonprofit, religious organization in the United States; and who has been carrying on the vocation, professional work, or other work described below, continuously for the past years; and seeks to enter the U.S. to work solely as a minister or priest of that denomination, in a professional capacity in a religious vocation or occupation for that organization and in a religious vocation or occupation for the organization or its nonprofit affiliate.

The EB-4 special immigrant process does not require a labor certification.

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