Employment-Based
Immigration
EB-1,2, and 3
I.
Intro:
EB-1 Priority Workers
EB-2 members of the professions
holding advanced degrees or individuals of exceptional ability
EB-3 Basic Professionals, skilled
workers, and other workers
-Generally employment based
immigration requires either a strong showing that the foreign worker is the best in the world or there are no other
qualified U.S. workers available for the position
- Visa Allocation - 120,000 visas
per year for all three categories
within each category 7% is the ceiling for individuals born
in a particular country; 7% is not a per country allocation.
- Visas for the EB-1,2,3 are
currently available - supply is “current” - section 104 of the American
Competitiveness in the 21st Century Act (AC21) provides for a rollover of the
under subscribed countries to the over subscribed.
II.
First Preference - EB-1 - Priority Workers
- Section 203(b)(1) allocates 28.6%
of the employment based Visas to the three subcategories of EB-1 on a first
come first served basis:
1. Workers of extraordinary
ability EB-1 (1)
2. Outstanding
professors and researchers EB-1(2)
3. Multinational
executives and managers EB-1(3)
1. EB-1
When evaluating a possible EB-1
practitioner should also consider:
a. EB-2 - INA 203(b)(2)
b. Workers of
exceptional ability under Schedule A, Group II
INA
212(a)(5)(A)(ii)(II); 20 CFR Sec. 656.10 and 656.22(d)
2. Statutory definition of EB-1
(1) Extraordinary ability :
“those who 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.”
3. Requirements:
-
No Job offer or Labor Certification required
- Alien may self petition as well as
the employer, if there is one
- Petitioner must include evidence
that alien will continue to work in U.S. in the area of expertise, evidence includes:
- letters from prospective
employers
- evidence of
prearranged commitments for employment, or
- an outline of how
alien plans to continue his or her work
4. Qualifying:
- establish his/her accomplishments
have been recognized in his/her field
- alien has received acclaim for
those accomplishments, established by:
1.
one time achievement, ie. Nobel Peace Prize or Pulitzer, or
2.
alternative evidence - alien must show a sustained recognition on a national or
international level; alien must provide
3 of the 10 documentations to qualify as sustained recognition:
1. receipt of lesser nationally or internationally
recognized prizes or awards for
excellence;
2. membership in
associations in the field that demand outstanding achievements of their
members, as judged by recognized national or international experts;
3. published material
about the alien in professional or major trade publications or other media;
4. evidence
the alien is a judge of others in the field;
5. evidence
of the alien’s original contributions of major significance to the field;
6.
authorship of scholarly articles
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;
or
10. evidence
of commercial success in the performing arts,
* or other
comparable evidence
5. Advantages of EB-1 over Schedule
A, Group II:
* EB-1 avoids need for job offer and
employer petition
* EB-1 only need to satisfy 3 of the
above 10 criteria, and provides for the possibility of only national
acclaim. As opposed to Schedule A,
Group II which requires international acclaim and 2 of 7 criteria
6. opting to file for the EB-1(1),
EB-1(2), or the Schedule A, Group II:
* Does alien’s work require
exceptional ability, if not then file Schedule A, Group II
* if the work is more research
oriented, then opt for EB-1(2)
* better yet file in all three categories since they require similar
evidence
7. Disadvantage of EB-1(1)
* BCIS examiners look for a showing
that the extraordinary ability worker will substantially
benefit the U.S.
*
An INS General Counsel opinion states that professionals do not qualify
EB- 1(1) unless the profession is arts,
sciences, business, education, or athletics.
8. Filing
* BCIS Form I-140 may be filed and
the required documentary evidence by alien or
an employer
* must be filed at the BCIS service center where the
alien will work. Unless the employer
has been accepted for central filing under sole jurisdiction of a particular
service center.
9.
AAO Decisions approving/denying Extraordinary Ability
- Acrobat/trapeze artist -
Status Granted - alien was working for Cirque du Soleil when petitioning; alien
had received several awards from national competitions held in the late 80s;
The AAO accepted evidence of gymnast awards, placing 2nd in Euro championships
(evidencing nationally or internationally recognized prize; selected tot the
Russian national team satisfied her membership in an association which required
outstanding achievements of its members; and 3rd criteria she performed in a
leading or critical role for organizations that have a distinguished
reputation, i.e. Cirque du Soleil. This
case is notable b/c she was allowed to combine her accomplishments as a gymnast
over 12 yrs before with her current employment to qualify. AAO is usually not that generous.
- Equestrian Circus Performer
- Status Denied - petitioner was a member of a performing equestrian group, but
the articles and other materials describing the group’s accomplishments did not
ID the alien by name. Support letters
were from colleagues but AAO wanted support letters from other equestrian
performers stating his contributions to the field. This is a clear case where more extensive documentation is
required. An underlying theme to all
AAO adjudications
- Authenticator and Appraiser of
Chinese Art - status granted,
petitioner was lacking in awards, prizes and membership in organizations that
required outstanding achievement, however support letters from curator at St.
John’s University, Metropolitan Museum of Art, Sotheby’s auction house, and
Smithsonian Freer Gallery were enough to grant status. This is an example of alot of prestigious
endorsements making up for certain elements.
Again the key is thorough documentation.
- Senior Economist - status denied - AAO denied b/c the
witnesses supporting him were either current or former co-workers at the World
Bank. AAO did not take these statements
to establish petitioner’s influence beyond his circle. AAO went on to say, “several of the
petitioner’s witnesses appear to have earned considerably more prestige and
authority” - kind of hard to establish extraordinary ability when your
supporting witnesses are more extraordinary than the petitioner.
III.
Outstanding Professors and Researchers EB-1 (2)
1. Basic Requirements:
* Be internationally recognized as
outstanding in a specific academic field, need 2 of the 6:
- receipt of major prize
or awards in the field
- membership in
associations that require outstanding achievement
- pub. material in prof.
journals written about the alien’s work
- acted as a judge of
others in the same or allied field
- original
scientific/scholarly contributions to the field, or
- authored
books/articles in scholarly journals with international circulation in the field
* Min. 3 years experience in
teaching or research in that field and,
- 3yrs experience can
include pre-degree research experience while working on advanced degree, as
long as, alien completed the degree, and the pre-degree research is recognized
as outstanding;
- 3yrs pre-degree teaching is o.k. if alien acquired
the degree, and had full responsibility for the course; stat/reg do not
preclude experience with petitioning employer; any combination of
teaching/research will satisfy the 3yr requirement.
* Enter the U.S. in a tenure or
tenure-track teaching or comparable research position at an university, or
comparable research position for a private employer
- Key with tenure is
permanency - if not tenure then employment terminable at will with the
expectation of continued employment also qualifies; no employment Ks with
termination date;
- ER can be a private
company but must employ at least 3 other researchers; ER must document
accomplishments in an academic field;
- Ph.D is not required
and Professor/Researcher is interchangeable
2. Procedures
- I-140 must be filed
with the service center with jurisdiction over the place of employment; EE cannot
self-petition; if EE switches ER the new ER must file a new I-140
3. Recent Adjudication
- recent review of AAO
shows no reversing of lower courts decision to not grant outstanding researcher
status; main issue in cases where the institution was suitable was whether
alien can meet the “international recognition” standard. For the practitioner the key here as in all
the AAO determinations is thorough documentation of the required elements.
IV.
Certain Multinational Executives and Managers EB-1 (3)
- executives &
managers of foreign companies who are transferred to the same or related
company in the U.S.
1. Basic Requirements - similar to
L-1
- employed outside the
U.S. in manager/exec. capacity for at least 1 of the 3 yrs immediately
preceding the filing of the petition, or if already in U.S. 1 of the 3 yrs
preceding entry in the U.S. as a non-immigrant.
- past employment must
have been with the same ER, an affiliate, or subsidiary of the ER.
- U.S. ER must have been
doing business in the U.S. for at least 1 yr.
2. Qualifying Multinational
Relationship
- “affiliate” 1 of 2
subsidiaries that is owned or controlled by the same parent or individual, or
group of individuals, as long as each individual owns and controls
approximately the same share or percentage of each entity.
- “Subsidiary” includes direct or indirect ownership of at
least half of another entity, ownership of 50% of a 50-50 joint venture with
equal control and veto power, or ownership of less than 50% of an entity with
defacto control.
3. Managerial Capacity
- manages the
organization of a department, subdivision, function, or component of the
organization
- supervises and
controls the work of other supervisory, professional, or managerial EEs or
manages an essential function within the organization
- has the power to
hire/fire or recommend other personnel actions.
- exercises discretion
over the day-to-day operations of the activity or function for which the EE has
authority, and
- Key = needs to manage
a function, not necessarily staff
4. Executive Capacity
- directs the management
of the organization or major component of the organization
- establishes the
goals/policies of the organization, component or function
- exercises wide
latitude in decision making, and
- receives only general
supervision from high level executives, board of directors, or shareholders
5.
Procedures
- ER files I-140 with
service center that has jurisdiction over place of employment.
6. Corporate Reorg Hypos comparing
EB, L-1A, and E 1/2
- Stock Acquisition -
Amazing.com, a U.S. internet retailer, purchases petitioner Goodcomp Corp, al
electronics chain, for $50million in stock and cash. Goodcomp is a U.S. company wholly owned by Canadian citizens,
none of whom holds U.S. citizenship or LPR status. Goodcamp USA employs one Can. manager who transferred to the U.S.
from Goodcomp’s Can. subsidiary.
Amazing.com intends to let Goodcomp USA continue as a wholly owned
subsidiary of Amazing.com. Goodcomp’s
Can subsidiary will continue operations.
Impact on Can. manager’s status if he were a L-1A, E, or EB-1(3)
- Merger(s) - Forward
merger - the purchaser is the surviving entity. The immigration statuses of the managerial EEs of the target comp
need to be reviewed; Reverse Merger
- The target comp is the surviving entity.
The managerial Es of the purchaser must undergo review; Consolidation
- purchaser and target are merged into new 3rd entity that becomes the
surviving entity. The immigration
status of the managerial EEs of both companies must be reviewed.
- Merger e.g. - German
multinational Simons company acquires petitioner Compact Computer Company (CCC)
in a forward merger. CCC becomes a
division becomes a division of Simons, and its foreign subsidiaries will be
dissolved. Q: what is the impact on
foreign managers who may have a L-1A, E, or Eb-1 (3) ?
- Asset Purchase - e.g.
Appliedsoft, a U.S. Corp with numerous foreign subsidiaries, acquires the
market intelligence software assets of Stork Limited, an Israeli Corp. The asset purchase agreement states that the
agreement is only to purchase assets, and that Appliedsoft will not acquire any
liabilities. As part of the agreement,
Stork limited agrees to close its U.S. and Israeli offices and to no longer engage
in the market intelligence software business.
The agreement contains a section on EEs stating that the key EEs with
experience working on the market intelligence software products willbe offered
positions at Appliedsoft at the close of the transaction. Q: what happens to the status of the manager
who is here on L-1A, E, or EB-1 (3) ?
- Spin off- Acuscan
Corp., the U.S. subsidiary of Acuscan France, has a very valuable metrology
division, which it spins off as Metroscan, Inc. The plan is for Acuscan to own 75% of metroscan’s issued and
outstanding stock, while another 25% will be offered to the general public in
an IPO. Q: same questions
-Management Buyout -
foreign managers want to buy out the company or division they work for, what
are the issues ?
V.
Members of professions holding, advanced degrees (or equivalent) or individuals
of exceptional ability in the science, arts, or business EB-2
- 28.6% of the total
employment based visas are allocated for EB-2
1. Basic Requirement for members of
a profession holding advanced degree
- any ER can file a
petition when the job requires an advanced degree and the alien possess one.
- INA Sec 101 (a)(32)
includes but not limited to: architects, engineers, lawyers, physicians,
surgeons, and teachers in elementary or secondary schools, colleges, academics,
or seminaries.
- If alien only has
Bach. then alien can still qualify with the Bach and 5 yrs of progressive
experience in the field can substitute for the Masters; Key = must have a Bach,
no experience allowed to substitute for it or a Ph.D.
- “Progressive
Experience” is advancing levels of responsibility and knowledge in the field.
2. Basic Requirement of Workers of an Exceptional
Ability in the sciences, arts, (including athletics) or business that will
substantially benefit the national economy, culture, educational interests, or
welfare of the U.S.
- the alien must have a
degree of expertise significantly above the ordinary, must meet 3 of the
following 6:
1. an official academic
record showing a degree, diploma, certificate, or similar award from a college,
university, school, or other institution of learning relating to the area of
exceptional ability;
2. at least 10 yrs of
full time experience in the occupation documented by letters from current or past employers;
3. A license to practice
the profession or certificate for the particular profession or occupation;
4. Evidence that the
alien has commanded a salary or other remuneration for services demonstrating exceptional ability;
5. Membership in
professional associations; or
6. Recognition for
achievements and significant contributions to the industry or field by peers,
governmental entities, or professional or business organizations.
* other comparable
evidence is also acceptable
3. Procedures
- ER files an I-140 at
the service center that has jurisdiction over the place of employment; the
petition must include a certified individual labor certification from the DOL.
4. Exceptions to Labor Cert.
requirement:
1. National Interest
Waiver (NIW) of job offer and labor cert -
if the alien is seeking
NIW then the alien or anyone on alien’s behalf may petition; petitioner must
submit the I-140 & ETA-750B Statement of Qualifications of Alien and
evidence to support the national interest claim.
- No stat/reg as to the
definition of “national interest” AAO in Matter
of New York State Department of Transportation (NYSDOT) outlined a 3 part
test:
i. alien seeks employment in ‘area of
substantial intrinsic merit’ in the above case the engineering of bridges
satisfies the criteria
ii. proposed
benefit is national in scope - above case NY’s bridges & roads connect to national highways.
iii.
petitioner must demonstrate that the national interest would be
adversely affected if a labor cert. was required i.e. that the national benefit offered outweighs the inherent
national interest in the labor cert. process - NYSDOT denied petitioner NIW on
this prong - NYSDOT has caused more confusion than clarification in this
area. NYSDOT essentially eliminated
NIWs for most service professions b/c their service would be localized, i.e. a
local school or community.
- petitioner
does not need to establish he/she is the top of the filed but does need to
establish work has attracted favorable attention outside his/her circle of
researchers; and that alien stands out from his peers that shows the nation is
better served by guaranteeing his continued presence, than by subjecting him to
job offer/labor cert. requirement.
- Cases where AAO has
denied NIW, since NYSDOT:
* Research
assistant - NIW denied - support letters emphasized alien’s potential
usefulness in his work toward drug development. AAO noted that the witness statements do not provide specific
examples of advances in the field already brought by the petitioner, rather
Petitioner’s potential advances in the future.
* Financial
analyst/MBA - NIW denied - “a beneficiary...must have already demonstrated
a track record of success with some degree of influence on the field as a
whole. Assurances that the
beneficiary’s current research....will become influential at some point in the
future are insufficient.”
* Plant
Geneticist - NIW denied - researcher who was developing a corn that made a
bigger popcorn, the record did not show that alien’s research had
attracted significant attention outside
of the University where the research had been conducted; noting that the alien
had not submitted evidence that his work had been “heavily cited” by other
researchers or testimonials that his work actually affected U.S. agricultural
industry.
*
Photosynthesis Research - NIW denied - Alien had a Ph.D. and worked in the area
of crop resistance to herbicides. AAO
discounted various support letters noting that the authors of these letters had
collaborated with the alien or his co-researcher. Again, it was a misstep for one of the support letters to have
stated that the petitioner’s research has the potential to contribute to the national interest.
- Key to
these failings is that the support letters need to be not from the alien’s
immediate circle and they need to detail the alien’s actual contribution to the
national interest, not potential.
- Cases where AAO has
Granted NIW, since NYSDOT
* Biomedical Engineer researching protein C as
an anti-coagulant - NIW granted - AAO was impressed with graduate students
support letters specifically citing the alien’s work as of being great
significance. Support letters came from
witness that were very prominent and not connected with the alien
* Biomedical
Researcher - NIW granted - researchers within and outside the alien’s
circle of collaborators found particular value in his work. Petitioner submitted letters from four
witness he worked with at Stanford, supplemented with two independent
researchers in the field, one published article of petitioner, one unpublished
manuscript, one abstract of a
conference presentation, three articles citing his work. The AAO found that the extensive
documentation made the case.
* Polyacene/polymer
engineer - alien submitted 5 supporting letters, copies of 3 published
articles, evidence that 1 independent researcher cited her work. and 3 letters
from independent experts in the field who wrote letters generated in response
to the alien’s presentations and written work.
Even though the 5 support letters were from members of her immediate
circle the volume of the other supporting evidence impressed the AAO.
- Key is a
lot of supporting evidence, especially from members outside of the petitioner’s
circle.
2. DOL’s Schedule A in
CFR Sec. 656.10
- Group I of Schedule A
are professions that are pre-certified by the DOL physical therapists and
nurses;
Group II petitioner
still has to establish that he/she does not need labor cert.
- To qualify for
Schedule A group II exemption to labor cert:
1. evidence testifying
to alien’s current widespread acclaim and international
recognition;
2. documentation showing
the alien’s work during the past year required and still requires exceptional
ability; and
3. and evidence from 2
of the following 7:
i. receipt
of international prizes or awards for excellence in the field;
ii.
membership in international organizations that require outstanding achievement
of their members;
iii.
published material about the alien relating to the alien’s work in prof.
publications;
iv. evidence
of the alien’s participation as a judge of the work of others in the same or an allied filed;
v. original
scientific scholarly research contributions of major significance in the field;
vi.
authorship of scientific or scholarly articles in the field in professional
journals with international circulation; or
vii. display
of the alien’s work at artistic exhibitions in more than one country.
VI.
Third Preference - Skilled workers, Professionals, and Other Workers EB-3
3 subcategories:
- skilled
workers
-
professionals
- other
workers
28.6% of the total
amount of employment based visas are allocated for this category; visas are
currently available in all employment based categories
1. Skilled Workers
- requires a min. of
2yrs of training or experience.
Relevant post-secondary education counts as training.
- Requirements of the
job offer in ETA-759A labor cert. Determine whether the job is skilled or
unskilled.
- when drafting the
labor cert., er should determine whether the job matches the position in the
Dictionary of Occupational Titles with a Specific Preparation code of at least
7 (2-4 yrs experience required), therefore the position will be
classified as skilled; if the job is pre-certified under schedule A -
petitioner require to show that the job requires at least 2 yrs
experience. ** find a copy of the
Dictionary **
2. Professionals
- must possess Bach.
degree or foreign equivalent and petitioner must show that a Bach. is normally required
for the position; no substitute for experience; must have the Bach. or
equivalent.
3. Other Workers
- positions that require
less than 2 yrs of higher ed, training, or experience; this area has
traditionally been backlogged, however in 2003 it was not. Practitioners should note that a waiting
period of as much as 10yrs in the recent past; practitioner should work closely
with the EE and er to find alternative routes.
4. Procedures for EB-3 filing
- file I-140 with
service center with jurisdiction over the place of employment; and a labor cert. or schedule A application; and
permanent
full-time job offer; and
evidence that the petitioner meets the requirements for the job set forth in
the labor cert.
VII.
Other Issues
1. Concurrent Filing
- allows for concurrent
filing of Form I-140 petition with the alien’s Form I-485 application for
Adjustment of Status in certain circumstances.
Allowed when an immigrant visa is immediately available to the foreign national, or would be immediately available if
the I-140 petition were approved on the date of filing.
2. Filing petitions in more than one
category
- regulations do not
limit the number of immigrant petitions that may be filed;
- e.g. EB-1 (1) and EB-2
with NEW, at the same time the er may still want to file a labor cert; when the
EB-2s are limited sometimes it is viable for the petitioner to file an EB-3
3. Priority Date
- when labor cert. is required the priority date is
the date the request for labor cert. is accepted for processing at the local
office of the state labor agency; otherwise the priority date is the date the
I-140 is properly filed with immigration; priority date attaches to the alien
upon approval of the I-140 petition.
- priority dates may be
lost by: failure to respond to requests for evidence by immigration or DOL, ers
withdrawal from intent to employ the alien, or automatic revocation of I-140
due to termination of er’s business.
4. Ability to pay wage
- ER must establish
ability to pay the alien the offered wage as of the alien’s priority date, such
evidence includes: ER’s annual report, Fed income tax, Financial statements; if
ER has more than 100 EEs than a statement from the organization’s financial
officer will suffice
- Can be hard for
start-up companies to establish; regulations allow start-ups to submit
additional evidence from the priority date up to approval of the process in
order to establish ability to pay.
- AAO, “as long as the
ER is actually paying the wage when the priority date is established, the case
should not be denied b/c of lack of ability to pay wage; for example if the
alien has been working for the ER already essentially alien needs to submit tax
returns and that should suffice.
5. Portability of Certain Green Card
Cases in Final Stage (I-485) Processing
- AC21 Sec 106(c) allows
AOS applicants who have had an application pending for more than 180 days, and
application has not been adjudicated, to change jobs/ER as long as they remain
in the same/similar occupation classification;
- allows EE to “port” ER
approved labor cert. and approved I-140 to subsequent
ER, as long as the I-485 has been pending for more than 180 days.
- New ER needs to submit
to immigration a letter of employment verifying the new job offer exists, with
its title, description and salary. This is not a reg but from an immigration
memo - this area still has any issues to resolve and requires administrative
guidance in the form of regs.
6. Labor Cert. Substitutions
- an ER may substitute
an alien beneficiary of an approved labor cert. as long as the beneficiary
meets all the requirements in Form ETA-750, Part A, of the labor cert. on the
date the labor cert. was originally filed; process is ideal
for ER who has an approved labor cert. and the original alien has either left
the employment or got green card through another avenue.