Employment-based immigrant visas (commonly referred to as green cards) allow the holder to live and work in the United States permanently. Seeking the right to live, work and learn in the United States is a complex process that has been made even more difficult by constantly changing laws. Applicants risk permanent bars to immigration for seemingly small errors or oversights.
The immigrant visa (green card) application process
The factors surrounding any individual’s immigration case vary greatly. Most green card applicants already have a temporary or non-immigrant visa, permitting them a limited amount of time in the United States. Since the process of obtaining a green card can take many years (depending on the category and in some cases even your country of birth), it is best to first obtain a temporary employment-based visa, which allows the holder to work lawfully in the U.S. while waiting for approval of the employment-based immigration visa.
Benefits of permanent legal residency
A green card entitles the holder and the holder’s spouse and children to live and work permanently, anywhere in the United States. Employment can be for any employer or the holder can be self-employed. Permanent resident status does not entitle the holder to vote and the holder will not receive top security clearance.
The primary Employment Based (EB) immigrant visa categories are as follows:
• EB-1(a) / Extraordinary Ability – Applicants with “extraordinary ability and achievements in the arts, sciences, business or athletics” who intend to continue to work in their field. USCIS has long maintained that the standard here must be the highest (top 1%), but we have seen top people denied, and less meritorious people approved.
• EB-1(b) / Outstanding Professors or Researchers – Applicants with at least three years of experience as a (tenure track) professor or what is judged to be a comparable level of pure research (not product development) in private industry.
• EB-1(c) / Transferred Multinational Executives or Managers – Applicants who have at least one full year of prior (documented) experience as an executive or (key) manager with the overseas / U.S. employer within the immediately preceding three years.
• EB-2(a) / Advanced Degree Professionals – Applicants who have (and who are doing a job that requires) a Master’s Degree or the equivalent. USCIS has established a confusing standard of equivalency for this category that contemplates five years of “progressively more responsible” work experience in the field following the attainment of a Bachelor’s degree. (NOTE: Labor certification is required, but can be waived by showing the job is in the “national interest,” a standard made very difficult by recent precedent decisions.)
• EB-2(b) / Exceptional Ability – Applicants with “exceptional ability in the arts, sciences or business” who have been petitioned for by an employer. Again, labor certification may be waived (as above) if the position is in the “national interest.” (NOTE: USCIS routinely confuses this standard with the standards for EB-1(a).)
• EB-3(a) / Professional – Applicants who are beneficiaries of an employer’s petition who are doing a job that requires the attainment of a specific Bachelor’s degree or the equivalent, and who have that degree or the equivalent. This category tracks closely with the standard for an H-1B, non-immigrant visa. Labor certification cannot be waived.
• EB-3(b) / Skilled Workers – Applicants who are beneficiaries of an employer’s petition whose job requires a combination of at least two years of specific training, education or work experience. Labor certification cannot be waived.
• EB-3(c) / Other Workers – Applicants who are beneficiaries of an employer’s petition who job requires less than two years of specific training, education or work experience. Labor certification cannot be waived. (NOTE: 10,000 visas are reserved for the exclusive use of this category, but the lower standards allow for such large numbers of qualified applicants that backlogs for visas in this category often exceed 10 years. Once again, the issue is not whether you may technically qualify for a visa category, but will you be able to get it in a time frame that makes sense to you.)
• EB-5 / Investor Visas – Applicants who have invested capital or in a business or purchase an existing one may be eligible for this type of visa. Read more about the EB-5 category.
For more information, or to schedule a consultation with an experienced lawyer, please contact our office.