Employment-Based Immigration

There are several distinct categories of employment-based immigration petitions, generally split between those that must test the U.S. labor market for willing workers and those that do not. Excluding the EB-5 route for investors, there are four separate “preference categories” for employment-based immigration: EB-1 for extraordinary individuals, outstanding professors and researchers, and multinational executives; EB-2 for advanced degree holders and National Interest Waivers; EB-3 for professional, skilled, and other workers; and EB-4 for religious workers and other special immigrants. 

Each of these requires an underlying I-140 petition (or I-360 petition for EB-4 applicants) as the basis for the green card application. As with family- and investment-based green cards, the employment-based preference categories are subject to significant delays depending on category and nationality.

EB-1-A Individuals of Extraordinary Ability: This category does not require a test of the U.S. labor market, nor does it require a sponsoring employer (i.e., self-petition). To qualify, one must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Receiving a Pulitzer Prize, Oscar, or Olympic medal will automatically establish eligibility, though most individuals will document their abilities by documenting at least three of the following criteria: (1) personal receipt (not nomination) of lesser nationally or internationally recognized prizes or awards for excellence; (2) membership in associations that require outstanding achievement as a prerequisite to admission; (3) published material about the individual in professional/trade publications or other major media; (4) evidence that one has been invited to judge the work of others (i.e., peer reviews); (5) evidence of original contributions of major significance to the field; (6) authorship of articles in professional/trade publications or other major media; (7) displayed artwork at artistic exhibitions or showcases; (8) evidence of a leading or critical role in distinguished organizations; (9) a high salary or other significantly high remuneration in relation to others in the field; and (10) commercial successes in the performing arts.

In addition to meeting three of these ten criteria, USCIS will conduct a final merits determination according to Kazarian v. USCIS. The individual must show that their expertise, skill, and accomplishments indicate that they are at the very top of their field. Many AAO decisions that uphold denials of EB-1-A petitions note that even major league baseball players do not automatically qualify for the category based on their rise to the majors, but rather whether they are amongst that small percentage of major league baseball players that are at the very top of their athletic profession (i.e., David Ortiz). For that reason, one approach to EB-1-A petitions is to carefully define and contract the area or profession of extraordinary ability.

EB-1-B Outstanding Professors and Researchers: This category does not require a test of the U.S. labor market; however, it does require a sponsoring U.S. employer. To qualify for the EB-1-B category, one must be able to demonstrate international recognition for their outstanding teaching or research achievements, to include at least three years of experience. The employment sought must be a tenured or tenure track teaching position (or comparable research position) at a university or other institution of higher education. These individuals should stand apart in the academic community through eminence and distinction based on international recognition. EB-1-B applicants need an offer of employment as well as documentation of at least two of the following: (1) receipt of major prizes or awards for outstanding achievement; (2) membership in associations that require members to demonstrate outstanding achievement; (3) published material in professional publications written by others about the individual’s work; (4) participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field; (5) original scientific or scholarly research contributions in the field; and (6) authorship of scholarly books or articles (in scholarly journals with international circulation) in the field. Much like the EB-1-A category, USCIS will first review the documentary evidence to see if at least two criteria are met and then proceed to a final merits determination under Kazarian v. USCIS. 

EB-1-C Multinational Executives and Managers: This category does not require a test of the U.S. labor market; however, it does require a sponsoring U.S. employer. This category shares a lot of similarities with the L-1A nonimmigrant visa, and the EB-1-C category is the most common route to a green card for L-1A visa holders. To make the transition from L-1A to green card, the individual must have been employed outside the United States by a related entity for at least one year in a managerial or executive capacity (within the past three years), and must be continuing employment in the United States in a similar capacity. As with the L-1A visa, the qualifying employment must be thoroughly established through a detailed discussion of the duties as well as the business structure, staffing, subordinates, and other factors. The executive or managerial activities described should be supported with documentary evidence.

EB-2 National Interest Waiver: This category does not require a test of the U.S. labor market, nor does it require a sponsoring employer (i.e., self-petition). Individuals pursuing this category must either have an advanced degree (master’s or higher) or possess a degree of expertise above that normally encountered. The standard for what constitutes an endeavor within the U.S.’ national interest has been developed by case law over several decades, particularly the Mississippi Phosphate and NYSDOT. However, USCIS issued a new precedential case in 2016, Matter of Dhanasar, that slightly altered the requirements. To qualify for a National Interest Waiver, and individual must show that (1) the proposed endeavor has both “substantial merit” and “national importance;” (2) the individual is “well positioned to advance the endeavor;” and (3) on the balance, it would be beneficial to the nation to waive the requirement of testing the U.S. labor market. 

Showing that an individual is well positioned to advance the endeavor is often the focus of these petitions and the bulk of the documentary evidence. However, practitioners should keep in mind that an endeavor’s substantial merit and national importance are not taken for granted – this requirement must be established as well. It is not uncommon to see denials because the national importance was never explicitly established – petitions for teachers often fall victim to this requirement.

The endeavors or fields that can potentially qualify for a National Interest Waiver are very diverse, provided an argument can be made that they are, in fact, within the national interest to pursue. This can include individuals who work in the defense industry, engineers, journalists and reporters, artists, researchers (not working for an academic institution), economists, and even business owners. Endeavors that can be directly linked to the Constitution (press, defense, intellectual property) or the federal budget are usually off to a good start. Showing an individual is well positioned to advance the endeavor is commonly done through supporting letters describing the individual’s previous work experience and potential for U.S. employment. The final requirement, justifying the circumvention of the U.S. labor market, is often left to the lawyer’s analysis.

EB-2 Advanced Degree Holders & EB-3 Professional, Skilled, and Other Workers: The EB-2 and EB-3 preference categories are combined here as they both require a U.S. petitioning employer and a test of the U.S. labor market. The determination of whether the category will be EB-2 or EB-3 (and what label within the EB-3 category) depend on the requirements of the position being offered – not the qualifications of the individual seeking the green card. EB-2 positions require a post-baccalaureate degree. A “professional” EB-3 position requires a bachelor’s degree, a “skilled” position requires at least two years of training or work experience, and the “other worker” positions require less than two years of experience. These requirements are not artificially set by the employer but are determined using the Department of Labor publications that set minimum requirements for most occupations. Because both the EB-2 and EB-3 categories are subject to different backlogs, these delays should be taken into consideration when preparing the petition.

These EB-2 and EB-3 petitions require a test of the U.S. labor market through the Labor Certification (or “PERM”) process. This initial phase can take eight months or longer to complete and requires a prevailing wage determination, at least one month or advertising and recruitment, another month of “cooling off” before the PERM can be filed with the Department of Labor. Processing times can take four months or longer to reach a decision – longer if the PERM is audited by DOL. Only after the PERM is approved can the employer submit the I-140 petition for the individual, where the employer will prove they can pay the prevailing wage and the individual proves they are qualified for the position offered. I-140 petitions can be premium processed for a response within two weeks; regular processing takes four to six months.

EB-4 Religious Workers: This category is limited to ministers and does not require a test of the U.S. labor market; however, it does require a sponsoring employer. To qualify, an individual must have been a member of a bona fide religious organization for at two years immediately preceding the EB-4 filing. Furthermore, the individual must have been working as a minister or in a religious vocation during these two years (often in R-1 status). The offered employment must be made by the religious organization for a full-time, compensated ministerial position. “Compensated” does not necessarily mean “salaried.”

The petitioning religious organization must present evidence of its 501(c)(3) status and proof the position will be compensated. The individual must show their membership in the organization as well as their experience working in a qualifying position. Petitioning for the EB-4 category is done with the I-360 petition. The EB-4 preference category previously included non-ministerial religious workers, though that provision is set to sunset on September 30, 2020, pursuant to Public Law 116-94.