Employment Visas - Immigrant

The EB1 and EB2 visas are both employment-based immigrant visas that lead to permanent residency in the United States, but they cater to different groups of professionals and have distinct requirements.

EB1 Visa: Designed for individuals with extraordinary ability in their field, outstanding professors and researchers, or multinational executives and managers. Applicants must demonstrate significant achievements and recognition in their profession.

EB2 Visa: Intended for professionals with advanced degrees or those who possess exceptional abilities in their fields. This category often requires a job offer from a U.S. employer, although it can be waived through a National Interest Waiver (NIW) if the work is deemed to have substantial merit.

Read this section further to understand more about the eligibility criteria and related certification (PERM).

There are three distinct EB1 categories, each with different eligibility criteria. These are:

  • Individuals with “Extraordinary Ability” in their field who are coming to the U.S. to continue working in that field (EB1A)
  • “Outstanding Professors and Researchers” who are coming to the U.S. to work in a permanent tenure-track position for a qualifying university or research institute (EB1B)
  • “Multinational Executives or Managers” of an overseas company who are coming to the U.S. to work on a permanent basis for a qualifying U.S.-based affiliate of the overseas company (EB1C)

What evidence do you need to prove “Extraordinary Ability”?

A successful EB1A applicant should have a strong resume of high-level experience in the arts, business, sciences, athletics or education. Also essential is a network of about three to six professional contacts who are familiar with your work and would be willing to sign a testimonial letter describing your history of achievement in the field, with a particular emphasis on any original contributions you may have made to the field.

Your portfolio should also include at least three of the following:

  • Press about you and your work in print or online media
  • Published articles authored by you
  • Employment with prominent companies in the field, including at least one job for which an official or former official of the company would be willing to verify your role in a testimonial letter
  • Nationally or internationally recognized awards for your work
  • Evidence of current or past membership in professional associations or honor societies
  • Evidence of service as a peer reviewer or judge of others’ work
  • Patents or other intellectual property to which you have contributed
  • Speaking engagements at industry conferences or symposia
  • Display artistic works in exhibitions
  • Evidence of high salary in comparison to others in the field
  • Evidence of commercial success in the performing arts
  • Any unique contributions to your field or other indicators of success that do not fit easily into any of the above categories

Our staff would be happy to review your portfolio – we have a proven track record of success in evaluating potential EB1A cases and partnering with clients to develop strong work portfolios into winning petitions.

EB1 – Employment-Based Immigrant Visas for High-Achieving Professionals

The EB1 immigrant category is reserved for high-achieving professionals across a wide range of disciplines. The primary advantage of this classification is that a successful applicant’s permanent residence can be processed relatively quickly, and in certain cases approval is not dependent on a specific job offer. There are three distinct groups within the EB1 category:

A) Persons with extraordinary ability in the sciences, arts, education, business or athletics (EB1A);

B) Outstanding professors and researchers (EB1B); and,

C) Multinational executives or managers (EB1C).

A) Extraordinary Ability: Persons of extraordinary ability in the sciences, arts, education, business or athletics do not require job offers and can self-sponsor. This category of permanent residence is available to a small percentage of people who have risen to the top of their field. While difficult to meet, our expert staff have guided high-achieving professionals across a wide range of disciplines to build a portfolio of evidence that satisfies this demanding standard.

For businesspersons, scientists, educators and athletes, this is a similar category to the [[O-1]] petition for temporary workers of extraordinary ability, as the legal standard of “extraordinary ability” and the documentation needed to prove it are substantially similar to the EB1A. However, to qualify for this immigrant classification, the beneficiary must demonstrate that he or she is coming to the U.S. to work in the area of expertise. Our firm helps clients develop a solid business plan or thorough statement of future plans to satisfy this requirement.

B) Outstanding Professors and Researchers: This classification is available to outstanding professors and researchers with three years of teaching or research experience. A job offer for a tenure-track position from a U.S. research or teaching institution is required. A position as a researcher for a private employer may qualify if the company employs at least three full-time researchers.

The evidence necessary to prove eligibility overlaps significantly with the EB1A category, so with the help of our expert staff most top professors and researchers who meet the EB1B standard but lack a qualifying job offer have the option to self-petition under the [[EB1A]] category.

C) Multinational Executives or Managers: Managers and executives of overseas companies with U.S. affiliates are eligible to obtain permanent residence under the first preference category, if their services are required permanently by the U.S. company. They must have been employed by the overseas affiliate company for at least one of the three years immediately preceding their transfer to the United States, in a managerial or executive capacity. The U.S. company must also have been in existence for at least one year. With the help of our expert staff, most individuals who have qualified for the [[L-1A]] nonimmigrant visa should be able to meet the legal requirements of this immigrant visa classification.

A successful EB2 applicant must qualify as either:

  • A “Professional” holding an “Advanced Degree”, or
  • An individual with “Exceptional Ability” in the sciences, arts, or business.

Additionally, the applicant must either:

  • Have a qualifying job offer for which they obtain “PERM Employment Certification”, or
  • Present evidence that their work in the U.S. will be in the “National Interest”.

What qualifies as an “Advanced Degree”?

  • A U.S. Master’s degree or higher, or its foreign equivalent; or
  • A Bachelor’s degree followed by five years of progressively senior work experience

What evidence do you need to prove “Exceptional Ability”?

A successful EB2 applicant should have a strong resume of high-level experience in the arts, business, or sciences. Also essential is a network of about three to six professional contacts who are familiar with your work and would be willing to sign a testimonial letter describing your history of achievement in the field, with a particular emphasis on any original contributions you may have made to the field. If you are applying for a “National Interest Waiver”, the letters will also include testimony on how your work in the U.S. will serve the national interest.

Your portfolio should also include at least three of the following:

  • An official academic record from an educational institution evidencing a degree, diploma, certificate, or similar award relating to your field
  • Letter(s) from current or former employer(s) verifying at least ten years of full-time experience in your occupation
  • A license or certification to practice your profession or occupation
  • Evidence of salary at a level that demonstrates exceptional ability;
  • Evidence of membership in professional associations
  • Evidence of your achievements and significant contributions to the industry

Our staff would be happy to review your portfolio – we have a proven track record of success in evaluating potential EB2 cases and partnering with clients to develop strong work portfolios into winning petitions.

What is a “National Interest Waiver”, and what evidence do I need to obtain one?

A National Interest Waiver exempts an EB2 applicant from requirement of a specific job offer, as well as the need to complete the PERM Employment Certification process.

To obtain a National Interest Waiver, the applicant must demonstrate that his or her work is in the national interest of the United States. Under current law, this involves a three-step analysis:

1.  The proposed endeavor must have both substantial merit and national importance

The focus of this prong is not simply the general field in which the applicant will be working, but the specific work they plan to do and the significant impact it is likely to have on areas of national importance to the United States including, but not limited to, business, entrepreneurship, science, technology, culture, health, or education.

It is critical that the applicants present their planned endeavors in the United States in a manner that clearly illustrates the compelling national interest that will be advanced by their work. Our staff has significant expertise in working with clients to develop descriptions of their professional plans in the United States that present a clear picture of why their work will be in the national interest.

2. The applicant must be well positioned to advance the proposed endeavor

While the first prong emphasizes the importance of the proposed work itself, the second prong focuses on the applicant and his or her qualifications to perform the proposed work. Evidence may include, but is not limited to:

  • Degrees, certificates, or licenses in the field
  • Patents, trademarks, or copyrights developed by the applicant
  • Published articles or media reports about the applicant’s achievements or current work
  • Documentation demonstrating a strong citation history of the applicant’s work or excerpts of published articles showing positive discourse around, or adoption of, the applicant’s work;
  • Evidence that the applicant’s work has influenced the field of endeavor
  • A detailed business plan or other description of the proposed work
  • Correspondence from prospective or potential employers, clients, or customers
  • Documentation reflecting feasible plans for financial support
  • Evidence that the applicant has received investment from U.S. investors, such as venture capital firms, angel investors, or start-up accelerators, and that the amounts are appropriate to the relevant endeavor
  • Copies of contracts, agreements, or licenses showing the potential impact of the proposed endeavor
  • Evidence that the applicant has received awards or grants or other indications of relevant non-monetary support (for example, using facilities free of charge) from federal, state, or local government entities with expertise in economic development, research and development, or job creation
  • Evidence demonstrating how the applicant’s work is being used by others, such as, but not limited to:
  • Contracts with companies using products that the applicant developed or assisted in developing;
  • Documents showing technology that the applicant invented, or contributed to inventing, and how others use that technology; and
  • Patents or licenses for innovations the applicant developed with documentation showing why the patent or license is significant to the field.

Letters from experts in your field and from government agencies or quasi-governmental entities in the United States also weigh heavily in your favor. Our expert staff will review any such letters you may have obtained, or can assist in drafting letters for any relevant professional contacts that are familiar with your work and would be willing to sign a letter in your behalf.

3. On balance, it must be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements

If USCIS determines that the first two prongs are satisfied, the officer must determine whether the applicant has demonstrated that the factors in favor of granting the waiver outweigh those that support the requirement of a job offer and thus a labor certification.

Our staff has proven experience in arguing these points and highlighting the ways in which your future work in the U.S. outweighs the benefits to the national interest of the PERM Labor Certification process.

 

EB2 – Professionals with Advanced Degrees or Exceptional Ability, and the National Interest Waiver (NIW) Option:

The EB2 visa category is for professionals holding an advanced degree (at least a Master’s degree or a Bachelor’s degree followed by five years of progressively senior work experience) who are coming to the United States to perform work that requires such qualifications. Individuals with “exceptional ability” in the sciences, arts, or business may also qualify under this category. The evidence needed to prove “exceptional ability” is similar to that required for the more stringent [[EB1]] “extraordinary ability” standard, though it does not require the applicant to be considered among the small percentage at the very top of the field and is thus attainable to a broader range of professionals.

This category normally requires a Department of Labor certification (“PERM”), although a waiver of this requirement can be obtained if it can be shown that the work the applicant intends to do will be in the “national interest” of the United States.

Since October 2005, this category has experienced substantial swings in immigrant visa availability. Currently, there is a backlog of several years for Chinese and Indian nationals, resulting in processing delays of “green card” applications for these nationalities.

A qualified U.S. employer seeking to sponsor a foreign-born worker for permanent residence under the EB2 or EB3 category must, in most cases, obtain a permanent labor certification from the Department of Labor (DOL) before filing a green card petition with U.S. Citizenship and Immigration Services (USCIS). The need to obtain the approval of two separate federal agencies, each with its own complex set of regulations, can make these cases particularly challenging to navigate. For this reason, it is essential to have expert legal guidance throughout the process.

The U.S. employer must first undertake good-faith recruitment efforts to consider applications from all minimally qualified U.S. candidates for specific positions sought to be certified. To receive certification from DOL, and therefore to qualify a selected foreign worker for permanent residence, the employer must attest that there are no qualified, able, willing and available U.S. workers to perform the job and that the employment of the applicant will not adversely impact the wages and working conditions of similarly employed U.S. workers. To complete the PERM labor certification process, a qualified U.S. employer must undertake the following steps:

  • Identify a permanent full-time job opportunity, determine its actual minimum requirements and job duties, and categorize it by occupation types as listed in the DOL regulations;
  • Obtain a Prevailing Wage Determination from the National Prevailing Wage Center (NPWC);
  • Complete all pre-filing notice and recruitment requirements prescribed by DOL regulations; and
  • Submit a PERM Application to the DOL.

Upon receiving PERM certification from DOL, the U.S. employer can file a petition with USCIS to sponsor the foreign-born worker for a Green Card under the EB2 and EB3 categories.

The PERM program is open to a wide range of positions and is especially useful to those qualifying as professionals for jobs requiring undergraduate and graduate degrees. Our staff has extensive experience shepherding cases through both the DOL and USCIS, ensuring compliance with both sets of regulations and maximizing your chances of success.

While most Green Card applications under the EB2 and EB3 categories require PERM certification, there are certain exceptions, described below, that allow the applicant to skip the certification process with DOL and file the case directly with USCIS:

  • PERM Exemption – National Interest Waiver (EB2 Only): The USCIS may waive the requirement of a job offer, and thus of the PERM labor certification process, if it determines that it is in the national interest to do so. This is an attractive category because individuals may self-file without a U.S. employer. The term “in the national interest” is not defined in the USCIS regulations, but is guided by precedent caselaw and determined on a case-by-case basis. To demonstrate national interest, the applicant must show that (a) the proposed work has both substantial merit and national importance (b) the applicant is well-positioned to undertake this work; and (c) on the balance, it would benefit the United States to waive the job offer and PERM labor certification requirement. Our expert staff has helped many clients develop successful arguments with solid supporting evidence, explaining why their planned work in the U.S. is “in the national interest”, thus avoiding the requirements of the PERM certification process, and we would be happy to evaluate your case to determine whether this is a viable option.
  • PERM Exemption – Professional nurses and physical therapists subcategory (“Schedule A, Group I”): EB2 and EB3 applicants working in these professions have been determined by the Department of Labor to currently be in short supply and may be eligible for an exemption from the PERM certification process. Please contact our office to see if you may be eligible for this fast-track category.
  • PERM Exemption – Science, arts, & performance arts subcategory (“Schedule A, Group II”): EB2 and EB3 applicants with exceptional abilities in sciences, arts or performing arts who are sponsored by an employer can also bypass the PERM certification process to seek permanent residence. The sponsoring employer is required to satisfy two sets of regulations (the Department of Labor and the USCIS) in order to qualify for this immigrant classification. In practice, this category is rarely used since most individuals in a position to prove “exceptional ability” can, with the help of our expert staff, qualify for the [[EB1A]] category, which does not require a job offer and is generally subject to faster processing times. However, in certain cases where a specific job offer is on the table and the available evidence is not an optimal fit for the EB1A, this category can be useful in providing an alternative path to permanent residence.

EB3 – Skilled Workers, Professionals and Other Workers

The EB3 visa category is available to workers with a qualifying U.S. job offer who fall into one of the following three categories: skilled workers performing labor that requires two years’ training or experience, professionals who hold a bachelor’s degree or its equivalent, or other workers capable of performing unskilled labor that requires less than two years’ training or experience. Our experienced team will help you determine if you meet the qualifications for this category. Workers in this category require PERM labor certification, but may be exempt if you work in one of the “Schedule A” professions described above.

EB4 – Religious Workers and other Special Immigrants

Religious workers may be eligible for permanent residence under the EB4 category, which covers ministers and non-ministers in religious vocations coming to the U.S. to perform religious work in a full-time compensated position. As of this writing, availability of this category is scheduled to end (“sunset”) on March 14, 2025, though the possibility exists that Congress may choose to extend it as they have on many occasions in the past – please check back here or in our [[blog]] for the latest news on any new developments.

EB5 – Investors

The EB5 program provides a pathway for investors and their families to build their business and obtain green cards for themselves and their families in the U.S. For more details on this category, please visit out [[EB5]] page or contact our office for details.

CONTACT US

By submitting this form: You agree to the processing of submitting personal data in accordance with Buda Law Group Privacy Policy, including the transfer of data to the United States.

Chat with Buda Law Group