Employment-Based Immigrant Visas

Employment immigration system is based on the Preference Categories 1 through 5 (Eb-1, EB-2, EB-3, EB-4 and EB-5).

Approximately 140,000 immigrant visas are available each fiscal year for aliens (and their spouses and children) who seek to immigrate based on their job skills. If you have the right combination of skills, education, and/or work experience and are otherwise eligible, you may be able to live permanently in the United States. Five employment-based immigrant visa preferences (categories) are listed below. Contact Employment and Business immigration lawyer of the Bokshan Law Firm for evaluation of your case.

Labor Certification

Most immigrant visa preferences require you to already have a job offer from a U.S. employer. This employer will be considered your sponsor. For some visa categories, before the U.S. employer can submit an immigration petition to USCIS, the employer must obtain an approved labor certification from the U.S. Department of Labor (DOL). The DOL labor certification verifies the following:

  • There are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage.
  • Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Labor certification is required in the Second and Third Preference Categories with exception of immigrants receiving the National Visa Waiver in the Second category (EB-2).

Preference System for Employment-Based Immigrants:

First Preference - EB-1

This preference is reserved for persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers.

Second Preference - EB-2

This preference is reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.

Third Preference – EB-3

This preference is reserved for professionals, skilled workers, and other workers.

Fourth Preference – EB-4

This preference is reserved for “special immigrants,” which includes certain religious workers, employees of U.S. Foreign Service posts, retired employees of international organizations, alien minors who are wards of courts in the United States, and other classes of aliens.

Fifth Preference – EB-5

This preference is reserved for business investors who invest $1 million or $500,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers.

Importance of Maintaining Non-Immigrant Status:

It is critical for an alien to maintain lawful temporary status in the United States to preserve eligibility for legal permanent residency.

Persons in the U.S. in unlawful status or who have violated U.S. Immigration Laws are generally not eligible for an immigrant visa.

In most situations, an alien will be barred from applying for adjustment of status if continuous lawful status in the United States has not been maintained. Also, if the alien decides to depart the United States to obtain an immigrant visa abroad, the alien may be subject to the three- or ten-year bar to reentry depending on the length, nature and timing of the alien’s unlawful presence in the United States. Once an alien has applied to adjust status, he is in an authorized lawful status as an applicant for adjustment of status and may obtain travel and employment authorization.

It should be emphasized that if the alien had acquired a certain period of unlawful presence in the United States before filing for adjustment of status, then he may subject himself to the three- or ten-year bar to reentry should he travel abroad on advance parole while his application to adjust status is pending.

This elite visa category is reserved for persons have an extraordinary ability, outstanding professors or researchers, and for multinational executives or managers (EB1 extraordinary ability category). Usually there are no long waiting times and a labor certification is not required for this category.

Each occupational category has certain requirements that must be met:

a. Extraordinary Ability.

To qualify for EB1 extraordinary ability category, you must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Your achievements must be recognized in your field through extensive documentation. No offer of employment is required. Applicant may file a self-petition.

Criteria for Demonstrating EB1 extraordinary ability: You must show evidence of receipt of a one-time major achievement (i.e., Pulitzer, Oscar, Olympic Medal), OR you must meet 3 out of the 10 listed criteria below to prove extraordinary ability in your field:

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence;
  • Evidence of your membership in associations in the field which demand outstanding achievement of their members;
  • Evidence of published material about you in professional or major trade publications or other major media;
  • Evidence that you have been asked to judge the work of others, either individually or on a panel;
  • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
  • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media;
  • Evidence that your work has been displayed at artistic exhibitions or showcases;
  • Evidence of your performance of a leading or critical role in distinguished organizations;
  • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field;
  • Evidence of your commercial successes in the performing arts.

b. Outstanding Professors and Researchers.

You must demonstrate international recognition for your outstanding achievements in a particular academic field. You must have at least 3 years of experience in teaching or research in that academic area. You must be entering the United States in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education.

You must have an employer file a visa petition for you. Self-petition is not allowed in this category.

You must include documentation of at least two listed below and an offer of employment from the prospective U.S. employer.

Examples of Documentary Evidence That a Person is an Outstanding Professor Or Researcher:

  • Evidence of receipt of major prizes or awards for outstanding achievement;
  • Evidence of membership in associations that require their members to demonstrate outstanding achievement;
  • Evidence of published material in professional publications written by others about the alien’s work in the academic field;
  • Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field;
  • Evidence of original scientific or scholarly research contributions in the field;
  • Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.

c. Multinational Manager or Executive.

To qualify, you must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation and you must be seeking to enter the United States to continue service to that firm or organization. Your employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.

Your petitioning employer must be a U.S. employer. Your employer must have been doing business for at least 1 year, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed you abroad.

You must have an employer file a visa petition for you. Self-petition is not allowed in this category.

This category is generally reserved for large multinational corporations, however, it might be possible for a smaller business entity to qualify.

CONTACT our law firm to evaluate your case.

You may be eligible for an employment-based, second preference visa (EB2 PERM application) if you are a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability. Below are the occupational categories and requirements.

Eligibility Criteria for EB-2 Category:

Advanced Degree:

The job must require an advanced degree and you must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field).

Documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty.

Exceptional Ability:

For Eb2 PERM application You 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. You must meet at least three of the criteria listed below.

National Interest Waiver:

Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the nation. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker. You must meet at least three of the criteria below and demonstrate that it is in the national interest that you work permanently in the United States.

Criteria for Exceptional Ability and National Interest Waiver:

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability;
  • Letters documenting at least 10 years of full-time experience in your occupation;
  • A license to practice your profession or certification for your profession or occupation;
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability;
  • Membership in a professional association(s);
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations;
  • Other comparable evidence of eligibility is also acceptable.

Employment-based, second-preference petitions must generally be accompanied by an approved individual labor certification from the Department of Labor. National Interest Waiver petitioners are exempt from this requirement and allow for self-petition.

To qualify for an EB-2 visa, your employer must also file a Form I-140, Petition for Alien Worker.

Family of EB-2 Visa Holders

Your spouse and children under the age of 21 may be admitted to the United States in E-21 and E-22 immigrant status, respectively. During the process where you and your spouse are applying for permanent resident status (status as a green card holder), your spouse is eligible to file for an Employment Authorization Document (EAD).

Employment-Based Immigration: Third Preference EB3 PERM Application.

You may be eligible for the Employment-Based Third Preference EB3 PERM Application immigrant visa category if you are a skilled worker, professional, or other worker.

“Skilled workers” are persons whose job requires a minimum of 2 years training or work experience, not of a temporary or seasonal nature

“Professionals” are persons whose job requires at least a U.S. baccalaureate degree or a foreign equivalent and are a member of the professions

The “other workers” subcategory is for persons performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature.

A. PROFESSIONALS:

You must be able to demonstrate that you possess a U.S. baccalaureate degree or foreign degree equivalent, and that a baccalaureate degree is the normal requirement for entry into the occupation.

You must be performing work for which qualified workers are not available in the United States.

Education and experience may not be substituted for a baccalaureate degree.

Labor certification and a permanent, full-time job offer required for which qualified workers are not available in the United States.

B. SKILLED WORKERS:

You must be able to demonstrate at least 2 years of job experience or training.

You must be performing work for which qualified workers are not available in the United States

Labor certification and a permanent, full-time job offer required.

C. UNSKILLED WORKERS (OTHER WORKERS)

You must be capable, at the time the petition is filed on your behalf, of performing unskilled labor (requiring less than 2 years training or experience), that is not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

Labor certification and a permanent, full-time job offer required.

While eligibility requirements for the third preference classification are less stringent, you should be aware that a long backlog exists for visas.

U.S. DEPARTMENT OF LABOR – LABOR CERTIFICATION (PERM).

Third preference petitions must generally be accompanied by an approved, individual labor certification from the Department of Labor on Form ETA-9089. In some cases, the petition may be submitted to U.S. Citizenship and Immigration Service (USCIS) with an uncertified ETA-9089 for consideration as Schedule A, Group I.

APPLICATION PROCESS

Your employer (petitioner) must file Form I-140, Petition for Alien Worker. As part of the application process, your employer must be able to demonstrate an ability to pay the offered wage as of your visa priority date. Your employer may use an annual report, federal income tax return, or audited financial statement to demonstrate an ability to pay your wage.

FAMILY OF EB-3 VISA HOLDERS

Your spouse may be admitted to the United States in E34 (spouse of a “skilled worker” or “professional”) or EW4 (spouse of an “other worker”). During the process where you and your spouse are applying for permanent resident status (status as a green card holder), your spouse is eligible to file for an Employment Authorization Document (EAD). Your minor children (under the age of 21) may be admitted as E35 (child of a “skilled worker” or “professional”) or EW5 (child of an “other worker”).

You may be eligible for an EB4 special immigrant employment-based, fourth preference visa if you are a special immigrant. The following special immigrants are eligible for the fourth preference visa:

  • Religious Workers
  • Special Immigrant Juveniles
  • Broadcasters
  • G-4 International Organization or NATO-6 Employees and Their Family Members
  • International Employees of the U.S. Government Abroad
  • Armed Forces Members
  • Panama Canal Zone Employees
  • Certain Physicians
  • Afghan and Iraqi Translators Who Have Provided Faith Service in Support of U.S. Operations

Under EB-5 immigrant investor program, entrepreneurs (and their spouses and unmarried children under 21) are eligible to apply for a green card (permanent residence) if:

Make the necessary investment in a new commercial enterprise in the United States; and
Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.
This program is commonly known as “EB-5″ for the name of the employment-based fifth preference visa that participants receive. Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors.

In 1992, Congress created the Immigrant Investor Program, also known as the “Regional Center Program”. This sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS based on proposals for promoting economic growth.

All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise:

Established after Nov. 29, 1990, or
Established on or before Nov. 29, 1990, that is: 1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or 2. Expanded through the investment so that at least a 40-percent increase in the net worth or number of employees occurs.
Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:

A sole proprietorship
Partnership (whether limited or general)
Holding company
Joint venture
Corporation
Business trust, or
Other entity, which may be publicly or privately owned.
This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.

Note: This definition does not include non-commercial activity such as owning and operating a personal residence.

Job Creation Requirements
An EB-5 investor must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees.

For a new commercial enterprise not located within a regional center, the full-time positions must be created directly by the new commercial enterprise to be counted. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees.
For a new commercial enterprise located within a regional center, the full-time positions can be created either directly or indirectly by the new commercial enterprise.
Direct jobs are those jobs that establish an employer-employee relationship between the new commercial enterprise and the persons it employs.
Indirect jobs are those jobs held outside of the new commercial enterprise but that are created as a result of the new commercial enterprise.
In the case of a troubled business, the EB-5 investor may rely on job maintenance.
The investor must show that the number of existing employees is being, or will be, maintained at no less than the pre-investment level for a period of at least 2 years.
A troubled business is a business that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20 percent of the troubled business’ net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.

A qualifying employee is a U.S. citizen, lawful permanent resident or other immigrant authorized to work in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B nonimmigrant) or who is not authorized to work in the United States.

Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the regional center program, “full-time employment” also means employment of a qualifying employee in a position that has been created indirectly that requires a minimum of 35 working hours per week.

A job-sharing arrangement whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions even if, when combined, the positions meet the hourly requirement per week.

Jobs that are intermittent, temporary, seasonal, or transient in nature do not qualify as permanent full-time jobs. However, jobs that are expected to last at least 2 years are generally not considered intermittent, temporary, seasonal, or transient in nature.

Capital Investment Requirements
Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.

The immigrant investor must establish that he or she is the legal owner of the capital invested. Capital can include the immigrant investor’s promise to pay (a promissory note) under certain circumstances.

Required minimum investments are:

General. The minimum qualifying investment in the United States is $1 million.
Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.
A targeted employment area is an area that, at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 percent of the national average rate.

A rural area is any area not within either a metropolitan statistical area (as designated by the Office of Management and Budget) or the outer boundary of any city or town having a population of 20,000 or more according to the most recent decennial census of the United States.

EB-5 Green card: What is an EB-5 “Regional Center” Program? 

Generally, Employment Based Fifth Preference Category, commonly known as “EB-5”, is an Employment Creation Program, designated for foreign investors wishing to invest foreign capital into the job-creating enterprises in the United States. Such investment, if approved by the U.S. Immigration Service, leads to permanent residency (green card) for investor and members of his family (spouse and children under 21 years of age).

There are two ways of funding a project with EB-5 capital: through a direct investment OR through an indirect, “pool” form called a “Regional Center”. The regional center can be more attractive, as the designation makes some USCIS requirements less stringent for EB-5 visa applicants. Regional centers are held to more lenient job creation requirements than direct EB-5 investment, which focuses on direct job creation. Rather than being required to create 10 direct full-time jobs, regional centers can satisfy EB-5 job creation requirements by creating 10 direct, indirect, or induced full-time jobs. The regional center is afforded the benefit of economic multipliers in creating these jobs. Regional centers can also make it easier to pool capital since there is no limitation on the number of EB-5 applicants who can invest in a particular project, so long as each of the applicants meets the job creation requirements.

I. How to become an EB-5 Regional Center:

The term “REGIONAL CENTER” means any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment within the EB-5 program. The business models that are eligible to become EB-5 Regional Centers include governmental agencies, partnerships, corporations and any other existing U.S. commercial entity.

A Regional Center must obtain approval from the United States Citizenship and Immigration Service (USCIS). USCIS regional center designation entails a multi-step process that requires the input of various experts. The cost of obtaining regional center organization and approval is substantial and highly variable. USCIS application, Form I-924, Application for Regional Center Under the Immigrant Investor Program, costs $17,795 in USCIS non-refundable filing fees. However, the overall cost to form a Regional Center is much higher and largely dependent on the professional fees charged by the professionals (discussed below) whose expertise is essential for the formation and operation of a Regional Center.

II. Steps to Become an EB-5 Regional Center:

There are several steps that an organization must take in order to obtain EB-5 Regional Center approval from USCIS. The costs involved and the documents that need to be produced will depend on the readiness of the project. Law requires that each regional center filing must be accompanied by a Project, the readiness of the project falls into three categories: hypotheticalactual, and exemplar.

  • Hypothetical project refers to a project proposal that is not supported by a Matter of Ho compliant business plan. A sample project containing general proposals and general predictions may be sufficient to determine that the proposed regional center will more likely than not promote economic growth.
  • Actual projects require more detail than a hypothetical project in order to conclude that the proposal contains verifiable details and is supported by economically or statistically sound forecasting tools. This generally means a comprehensive business plan and economic report that accurately describes the project, investment, job creation, and so on.
  • Exemplar refers to a Form I-526 petition, filed with a Form I-924 actual project proposal that contains copies of the commercial enterprise’s organizational and transactional documents, which USCIS will review to determine if they are in compliance with established EB-5 eligibility requirements. Below we will discuss the steps and additional documents required for each category.

STEP 1. Determine the Scope of the Regional Center:

Perhaps the most important step of the regional center approval process is for the business organization to determine the geographic scope and economic benefit of the project. This includes determining the regional center geographic boundaries, business industry focus, corporate structure, operational business model, and required investment amount for the potential project.

STEP 2. Acquire the Services of Professionals Who Will be Integral to Producing the Documents Required For Regional Center Filing:

At a minimum the following documents are required for organization of a Regional Center:

  • Hypothetical Project: Regional center Operational Business Plan, Corporate Structure agreements for ownership of the regional center, (a) sample project business plan(b) economist report for the project, and sample management agreement between the regional center and the project.
  • Actual Project: The documents listed above with the addition of a comprehensive project business plan, and sample (c) transactional documents (typically an investor subscription agreement and private placement memorandum).
  • Exemplar Project: The documents list above with the addition of final transactional documents, as well as a sample Form I-526 Immigration Petition by Alien Entrepreneur.
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STEP 3. Assemble a TEAM of Professionals:

  • (a) A business plan writer with expertise in producing EB-5 compliant business plans should be consulted, as the business plan is one of the most important documents required for regional center filing. The Administrative Appeals Office (AAO) issued a precedent decision Matter of Ho and has articulated the standards by which USCIS will review a business plan: the plan should contain a market analysis, including the names of competing businesses and their relative strengths and weaknesses, a comparison of the competition’s products and pricing structures, and a description of the target market/prospective customers of the new commercial enterprise. The plan should list the required permits and licenses obtained. If applicable, it should describe the manufacturing or production process, the materials required, and the supply sources. The plan should detail any contracts executed for the supply of materials and/or the distribution of products. It should discuss the marketing strategy of the business, including pricing, advertising, and servicing. The plan should set forth the business’s organizational structure and its personnel’s experience. It should explain the business’s staffing requirements and contain a timetable for hiring, as well as job descriptions for all positions. It should contain sales, cost, and income projections and detail the bases therefore. Most importantly, the business plan must be credible.
  • (b) An economist must be retained to prepare job calculation and job creation reports. This is especially important for a regional center project, as regional centers are afforded the ability to use indirect and induced job creation numbers. Indirect jobs can qualify and be counted as jobs attributable to a regional center, based on reasonable economic methodologies, even if they are located outside of the geographical boundaries of a regional center. For purposes of demonstrating indirect job creation, petitioners must employ reasonable economic methodologies to establish by a preponderance of the evidence that the required infusion of capital or creation of direct jobs will result in a certain number of indirect jobs.
    •  

The economist must also determine whether or not the regional center will be located in a targeted employment area (TEA). Targeted Employment Area is a critical factor because it allows for a lower investment amounts.

  • (c) Securities counsel with a thorough understanding of the Security and Exchange Commission (SEC) regulations to produce EB-5 compliant subscription and private placement memorandums. These documents must not only comply with Security and Exchange Commission federal regulations, but also USCIS regulations, the most important of which being the “at risk” requirement: in order to qualify as an investment in the EB-5 Program, the immigrant investor must actually place his or her capital “at risk” for the purpose of generating a return, and the mere intent to invest is not sufficient. The alien must show actual commitment of the required amount of capital. This means that any clause providing a put, call, or redemption of investment funds prior to final adjudication of Form I-829 Petition by Entrepreneur to Remove Conditions, will result in possible denial of the investor’s application.
  • (d) Immigration Attorney to prepare and file a petition for a Regional Center designation, immigrant petitions by individual investors and to guide throughout the immigration process of approval for investors permanent residence and compliance and reporting requirements.
  • (e) Banking professional to advise on the international funds transactions, escrow accounts and relevant banking regulations.
    •  

III. Submit I-924 Petition:

Finally, with all these documents in place, the regional center can now submit the I-924 petition to USCIS. The regulations provide that once Form I-924 is filed with USCIS, the regional center can go to market and advertise its project. Please note however, the regional center cannot accept any investment from qualified investors, until, and only until the regional center is approved.

IV. Submit I-526 Petitions for Investors:

Once the Form I-924 is approved and the Regional Center is designated, the regional center can now submit the EB-5 investor’s Form I-526 petitions to USCIS: I-526 applications will outline the specific EB-5 projects that the regional center will be conducting, and will include either the documents outlined above in the actual or exemplar filing. While Form I-526 is a self-petition by an individual investor, it is critical to employ the services of experienced immigration counsel. Immigration counsel will review the regional center, project, and an individual investor for compliance. Once filed and approved, I-526 petitions enable individual EB-5 investors to obtain their conditional green card so that they can move to the United States.

V. Administer Project and Maintain USCIS Compliance:

Upon commencement of operations, the regional center must monitor its investors and track the job creation requirements for its projects. It will need an operational officers to conduct daily operations. The regional center must also file an annual compliance report, Form I-924a with USCIS (Annual compliance report fee is $3,035).

The regional center must also make filings with the Securities and Exchange Commission and other state and local agencies that regulate securities.

VI. EB-5 Visa Applicants File I-829 Petitions:

The final step of the EB-5 visa process for individual investor applicants is to file the I-829 petition to remove conditions on their permanent residence. Evidence must demonstrate that the project and investor have met all the requirements of the EB-5 program. Once approved, the I-829 enables the investors to obtain their lawful permanent resident status (green card). Although the application is filed by the individual EB-5 visa applicants, the regional center must provide evidence of meeting the job creation requirements as a result of the investment.

Extraordinary ability green card category.   Contact experienced law firm to evaluate your case.

Persons of extraordinary ability are defined by statute as those who can show that they 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.

Extraordinary ability is defined as a level of expertise showing that the individual is one of “that small percentage who have risen to the very top of the field of endeavor.” It means generally that a person is a very well accomplished in his or her profession.

There are two ways to qualify for the Extraordinary Ability green card. First, a person would qualify if he or she is a recipient of a major, internationally recognized award. Laws do not define which specific awards would qualify. While some awards such as a Nobel Prize or awards of a similar caliber clearly qualify, there are a number of other awards that, if well documented and explained, might qualify.

Person may also be recognized as having extraordinary ability on the alternative factors. To satisfy the alternative requirements, evidence must show that the individual satisfies at least three of the following criteria:

  1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
  2. Published material about the alien in professional or major trade publications or major media relating to the alien’s work;
  3. Evidence that the alien has judged  the work of others;
  4. Membership in associations in the field which demand outstanding achievement of their members, as judged by recognized national or international experts in their fields;
  5. Evidence of the alien’s original contributions of major significance to the field;
  6. Authorship of scholarly articles in the field, in professional journals or other major media;
  7. Display of the alien’s work at artistic exhibitions or showcases;
  8. Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
  9. Evidence that the alien commands high remuneration in relation to others in the field;
  10. Evidence of commercial success in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

Major advantage of this category is that the alien may self-petition under this category; employer’s sponsorship is not needed. Person may apply from his or her home country or while in the United States.

Foreign professionals who hold at least a Master’s Degree or can prove exceptional ability in certain fields are eligible for legal permanent residence (green card) as advanced degree professionals without the labor certification requirement. If the foreigner’s work benefits the national interest (improves the United States economy, health care system, environment, education, housing, culture, technology, etc.) and the foreigner can demonstrate evidence of future contributions to his or her field, he or she may qualify for a “National Interest Waiver” of the Labor Certification process. The foreign national may self-petition or be sponsored by an employer.

Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have “exceptional ability” and whose employment in the United States would greatly benefit the nation. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.

You 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.”

For a successful National Interest Waiver case, an alien must satisfy the following minimum requirements:

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability;
  • Letters documenting at least 10 years of full-time experience in your occupation;
  • A license to practice your profession or certification for your profession or occupation;
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability;
  • Membership in a professional association(s);
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations;
  • Other comparable evidence of eligibility is also acceptable.

Precedent decision in the National Interest Waiver cases:

Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) now controls the decision making process in the National Interest Waiver cases. Previous precedent case Matter of New York State Department of Transportation [NYSDOT], 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998) has been overruled and no longer applies.

New guidance opens the door to lawful permanent residence for individuals involved in a wider range of endeavors who would have failed to qualify under the old standard.

Matter of Dhanasar provides that after eligibility for EB-2 classification has been established, USCIS may grant a National Interest Waiver if the petitioner demonstrates, by a preponderance of the evidence, that:

  • The foreign national’s proposed endeavor has both substantial merit and national importance.
  • The foreign national is well positioned to advance the proposed endeavor.
  • On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Notable change is that there is no longer a requirement of comparing the foreign national to other U.S. workers in the same field. Instead, the criteria focuses on the applicant’s own background. Under more flexible standard, it may be possible for a self-petitioning entrepreneur to demonstrate that the U.S. would benefit from the foreign national’s contributions.

Contact our law firm for a detailed consultation if you consider a National Interest Waiver as your immigration option.

EB1 Outstanding Professor or Researcher Immigrant Category. As its name implies,  EB1 Outstanding professor or researcher category is commonly used in the academic and scientific fields. It is also possible to apply under this category if the sponsoring employer has a research and development department with at least 3 other researchers.   To qualify as an “outstanding professor or researcher,” the alien must demonstrate international recognition as outstanding in a specific area. Evidence must prove at least two factors of the following:
  1. Receipt of major prizes or awards for outstanding achievement in the academic field;
  2. Membership in associations in the academic field that require outstanding achievements of their members;
  3. Published material in professional publications written by others about the alien’s work in the academic field;
  4. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or allied field;
  5. Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or
  6. Evidence of the alien’s authorship of scholarly books or articles in the academic field.
In order to qualify for this first preference category,  an applicant must possess at least three years of research experience in the field of his or her expertise. A job offer is required from an employer meaning that only an employer may submit a petition for an outstanding professor or researcher. Self-petition is not available in this category and employer must sponsor this type of petition. Evidence in EB1 Outstanding professor or researcher case consists of educational credentials, major awards, membership in associations in the academic field that require outstanding achievements, publications, books, citations, expert opinion letters and other suitable evidence to demonstrate applicant’s outstanding position in his or her field of expertise.  If the applicant has not received a major award, expert opinion letters are critical for support  of the petition. Contact our Law Firm for your case evaluation.

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