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.