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Permanent Employment Visas

Permanent Employment Visas

Permanent Employment Visas

  1. First Preference EB-1

You may be eligible for an employment-based, first-preference visa if you are an outstanding professor/researcher, have an extraordinary ability, or are a multinational executive or manager.

In order to qualify under the extraordinary ability category you must:

  • Demonstrate extraordinary ability in the sciences, education, arts, business, or athletics through sustained national or international acclaim.
  • Be recognized in your field and be able to show extensive documentation
  • Provide evidence of a one-time achievement OR meet 3 of 10 criteria:
    • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
    • Evidence of your membership in associations in the field which demand outstanding achievement of their members
    • Evidence of published material about you in professional or major trade publications or other major media
    • Evidence that you have been asked to judge the work of others, either individually or on a panel
    • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
    • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
    • Evidence that your work has been displayed at artistic exhibitions or showcases
    • Evidence of your performance of a leading or critical role in distinguished organizations
    • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
    • Evidence of your commercial successes in the performing arts

An offer of employment is not required.

In order to qualify under the outstanding professors and researchers category you must:

  • Demonstrate international recognition for your outstanding achievements in a particular academic field.
  • Must have at least 3 years experience in teaching or research in that academic area.
  • Must be entering the U. S. in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education.
  • Provide evidence of an offer of employment from a prospective U.S. employer AND include at least 2 of the documentation required:
    • Evidence of receipt of major prizes or awards for outstanding achievement
    • Evidence of membership in associations that require their members to demonstrate outstanding achievement
    • Evidence of published material in professional publications written by others about the alien’s work in the academic field
    • Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
    • Evidence of original scientific or scholarly research contributions in the field
    • Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

In order to qualify under the multinational manager or executive category you must:

  • Have been employed outside the United States in a managerial or executive capacity (with the same affiliate, employer or subsidiary of the employer) the 3 years preceding the petition for at least 1 year by a firm or corporation
  • Be seeking to enter the United States to continue service to that firm or organization
  • Have a U.S. employer petition for you and they must have been doing business for at least 1 year as a subsidiary, an affiliate, or as the same corporation that employed you abroad 
  1. Second Preference EB-2

You may be eligible for an employment-based, second preference visa if you hold an advanced degree or its equivalent, or are a foreign national who has exceptional ability. Your spouse and children under the age of 18 may be admitted to the United States. During the process where you and your spouse are applying for permanent resident status (status as a green card holder), your spouse is eligible to file for an Employment Authorization Document (EAD).

In order to qualify under the advanced degree category you:

  • Must apply for a job that requires an advanced degree
  • Must possess an advanced degree (or possess a bachelor’s degree plus 5 years progressive work experience)

 

In order to qualify under the exceptional ability category you:

  • Must show exceptional ability in the arts, sciences, or business.
  • Must meet at least 3 of the criteria:
    • Official academic record showing that you have learning relating to your area of exceptional ability
    • Letters which show at least 10 years of full-time experience in your occupation
    • A license to practice your profession or certification for your profession or occupation
    • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
    • Membership in a professional association(s)
    • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
    • Other comparable evidence of eligibility is also acceptable.

In order to qualify for the national interest waiver you:

  • Must be alien requesting that the Labor Certification be waived because it is in the interest and would greatly benefit the U.S.
  • Must meet at least 3 of the criteria:
    • Official academic record showing that you have learning relating to your area of exceptional ability
    • Letters which show at least 10 years of full-time experience in your occupation
    • A license to practice your profession or certification for your profession or occupation
    • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
    • Membership in a professional association(s)
    • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
    • Other comparable evidence of eligibility is also acceptable.

 

  1. What is the National Interest Waiver (NIW)?

NIW is for foreign nationals of exceptional ability in sciences, arts or business or advanced degreed professionals (M.A., M.S., M.E., M.D., Ph.D. or their equivalents). The alien who applies for permanent residence status (Green Card) seeks a waiver of the offer of employment by establishing that such a waiver would be in the national interest. Thus individual labor certification from the Department of Labor will be waived for the sake of the national interest.

NIW is the best choice for those who are qualified and do not wish to wait several years for labor certification approval or those who do not want to be limited to a specific employer during labor certification. The applicant sponsors herself/ himself without the need of having a job, furthermore, the applicant still can try NIW application even though s/he has already applied green card under another classification.

  1. Who will qualify for National Interest Waiver EB-2 petition? What are the NIW Green Card application requirements?
  • Foreign nationals of exceptional ability in the sciences, arts or business; or
  • Foreign nationals that are advanced degree professionals (holding a Master or Doctor degree); or
  • Qualified alien physicians who will practice medicine in an area of the U.S. which is underserved.

There are no absolute requirements as to who qualify for a National Interest Waiver, but an alien must be able to demonstrate that she is seeking work in the area of substantial merit to the United States, the approval of his/her Permanent Residence would be in the national interest; and delay or discontinuation of his/her activity due to the requirement of a Labor Certificate will adversely affects the national interest.

  1. 3. What is an advanced degree?

A degree beyond the bachelor’s degree is considered an advanced degree (most first professional, master’s and doctor’s degrees or their equivalents including: M.A., M.S., M.E., M.D., Ph.D.). Ph. D. students also qualify for an NIW petition.

  1. What are the criteria for exceptional ability?

In order to be qualified for the classification of “Alien of Exceptional Ability”, the applicant must provide documentation of at least three of the following items:

  • An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
  • Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
  • A license to practice the profession or certification for a particular profession or occupation;
  • Evidence that the alien has commanded a salary, or other renumeration for services, which demonstrates exceptional ability;
  • Evidence of membership in professional associations;
  • Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
  1. What are the advantages of National Interest Waiver petitition?
  • No need for a permanent job offer;
  • No need for labor certification (it usually takes several years for approval);
  • No need to be tied to a specific employer during labor certification.
  1. How to apply for the national interest waiver?/What documents are required to apply for the

National Interest Waiver?

You must file a USCIS Form I-140 (Petition for Alien Worker) at the USCIS Regional Service Center that serves the area where you will work.

To apply for a national interest waiver, you must also submit Department of Labor Form ETA-750B. Other supporting documents to demonstrate that the alien holds advanced degree or has exceptional ability in the sciences, arts, or business, and meets the requirements for the NIW (details please see I-140 checklist, and I-485 checklist).

7.What is the NIW Green Card process? (What are the procedures for NIW Green Card application?

To apply for an NIW Green Card, first you have to check whether you are qualified, if you are a foreign national of exceptional ability in sciences, arts or business OR you hold advanced degree [M.A., M.S., M.E., M.D.(Bachelor of Medicine for China, India and some other countries), Ph.D. or their equivalents], then you are ready to go ahead to get a USA Green Card through NIW. NIW Green Card application is the quickest and easiest way for you

How to Collect Evidence to Make Your National Interest Waiver Petition Strong?

To establish that you are an exceptional researcher whose permanent residence will be in the national interest of the United States, you must collect all the evidence to demonstrate two critical points:

  1. You are in a position that is under the national interest;
  2. You are exceptional, you contribute to US to a much greater degree than an average US citizen counterpart.

To this end, collecting the following evidence with all detailed information will be fundamental, some of the samples in this ebook will help you how to prepare them:

To explain that your position or the work you are doing is in the national interest of the United States, you need to collect and use all the related evidence such as government documents, public media, and internet website that will help you to establish how your work is related to or contribute to:

  • Improving the U.S. economy;
  • Improving the U.S. health care;
  • Improving wage/working conditions of U.S. workers;
  • Improving education and training programs for U.S. children and   underqualified workers;
  • Improving culture awareness and diversity through artistic endeavors;
  • Providing more affordable housing for young and/or older, poorer U.S. residents;
  • Improving the environment of the U.S. and make more productive use of the natural resources;
  • Significant scientific contributions;
  • A request from an interested U.S. government agency;
  • Creating employment opportunities.

Strong recommendation letters.

Strong testimonials from experts in your field are key to a successful national interest waiver case. Therefore, you need a strong reference, not just an average one.

How many letters do you need? At least five supporting letters from the experts in the field are required. Most people submitted 8-10 references. Recommendation letters from experts outside your institution carry more weight (at least two such letters).

How to get a strong reference?

First, you must explain importance of the recommendation to the writer, write a request letter like the sample in this Ebook, then attach a sample reference letter. Writing such a letter takes time, so you should appreciate that and ask the writer whether s/he wants a draft for her/him to work on, that would not only save their time but do you good.

Whom should you turn to?

  1. Your boss, mentors, colleagues are most likely to help you with this.
  2. Outside collaborators and peers in your own field whom you have helped or talked to.
  3. Recommendation letter from someone outside your own institution, the USCIS calls it independent letter of recommendation, carries more weight.
  4. Previous foreign trainees in your institution from Europe, Japan, Korea etc. The chances are, they are experts in their own countries to write a good independent recommendation letters for you. That will really help you in establishing that you are internationally recognized expert in academic field.
  5. Experts in your field that you are personally familiar with.

Documentation of your credentials and awards

Certificates for patent or documents for pending patent

  1. You have received a patent or are applying a patent, you are in good shape for the application. Make a copy of the evidence, and describe the novelty and importance.
  2. Certificates as an Independent Principle Investigator. If you have been an independent principle investigator in US or other countries, ask for a certificate or official statement for that, it helps demonstrate your ability in scientific research.

Documentation of the receipt of major prizes or awards in the academic field

  1. Collect all evidence for your receipt of prizes and awards, every award counts. If you had an award in your own country, but lost the certificate, ask the awarding organization or your previous working institution to write a statement for that. Don’t be lazy, these are important aspects that distinguish your ability from others with the same training and background.
  2. Explain the criteria and significance for receiving such awards and how many people received the awards.
  • Evidence of your participation, either individually or on a panel as the judge of the work of others in the same or an allied academic field (such as serving as a reviewer, on doctoral and master’s committees).
    1. Have you been invited to review paper submitted for publication in a journal?
    2. Have you been invited to review a grant for an institution?
    3. Have you been on committees judging other’s work (such as graduate students)? Even your involvement in helping review other people’s paper or grants for your boss, mentor, or colleague can be counted as credits, e.g., your boss asked you to help review a grant application, that means that your boss deemed you as an expert in that field. Collect all the evidence. Ask for a letter attesting that if you did not keep those records.
  • Published material in professional publications written by others about your work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation. If there was any things written by others in professional publications or public media, that carries volume for your work, make copy of the documents and give the information on the media.
  • Meeting invitations, conference presentations or lectures on workshop. If you were invited to give oral presentation, seminar, or lectures in any occasions, make a copy of the evidence. That says you are recognized as an expert in your field.
  • Reprint request from the peers in academic field Give an estimated number as to how many people asked for your paper reprint. It doesn’t matter whether they are experts in your field or just your friends in your own country.

Documentation of your memberships in associations in the academic field which require outstanding achievement of their members.

Apply for memberships in professional societies immediately after you want to begin your Green Card application. The more, the better. Most of the associations will be very happy to have you. Even those outstanding associations, such as Sigma Xi, Who’s Who in certain professionals who help you to become a member of their associations as long as you contact them. Don’t think you are underqualified. There are no absolute criteria for joining them, they will find people to nominate you for the application.

Evidence of your authorship of abstracts, articles and books.

List and make a copy of all the articles and books you have contributed to, describe briefly about the types of journals (hopefully they are considered top tier in your discipline) and provide the impact factor for each journal.

Evidence of original scientific research contributions to the academic field.

Write down in details how your work has contributed to or will influence the academic field. Explain your contributions by using quotes from letters of support that attest to your significant contributions to the field.

NIW Form I-140 Documents Checklist

  1. Form I-140
    Form I-140 filing fee, a $475.00 Bank money order made payable toUS Department of Homeland Security, please check for possible fee update from http://www.uscis.gov/
  2. Petition cover letter
  3. Lawful documents of petitioner for I-140:
  • Copies of all I-20’s and transcripts
  • Copies of Employment Authorization Documents.
  • Photocopies of passport with renewal
  • Current visa
  • Copy of I-94
  • Copies of all IAP-66 forms
  • Copy of J1 waiver approval notice
  • H1B approval notices
  • Social security card
  • Copies of birth certificates or extract of household registration.
  • No criminal conviction certificates
  • Copy of marriage certificate
  1. Petitioner’s background and current information
  • Form ETA-750B
  • Convincing statement that the national interest will be adversely affected if a labor certificate is required
  • Profile of the Employer
  • Employment offer letter
  • Curriculum Vitae
  • Certified copies of B.S., M.S., and M.D./PhD diplomas and degree equivalent evaluation (such as performed by Global Credential Evaluators, Inc.).
  • Copies of paychecks for the last two months.
  • W-2 forms
  1. At least five recommendation letters from the experts or other influential or established researchers in your field and their Curriculum Vitae.
  • Recommendation letters from people outside your institution carry more weight (at least two such letters).
  1. Petitioner’s other credentials and awards, such as:
  • Patents
  • Patent certificates received.
  • Patent applications/pending.
  • Awards and prizes.
  • Profile and reputation of the organization granting the award.
  • Significance of the award.
  • Criteria used to select the recipients.
  • Memberships in professional associations in the field, which require outstanding achievements of their members. (Try to join some associations, such as Sigma Xi, AACR, etc. As long as you apply for their membership, most of societies will be happy to approve your application)
  • Eligibility requirements.
  • By-Laws of the professional associations.
  • Copies of published materials in professional or other major media written by others about you and your work in the field. Such copies shall include the title, date, and author of the material. Reference to your published papers with evaluation.
  • Copies of Who’s Who and other publications that list your name (try to apply for Who’s Who, as long as you are willing to pay the fees, they will be happy to let you in.)
  • Requirements for listing the name.
  • Your profile.
  • Information on your participation, either individually or on a panel, as a judge (reviewer)of the work of others in the field.
  • Criteria for selection as a reviewer.
  • Invitation letters from the Editors.
  • Manuscripts reviewed.
  • Your comments to the authors.
  • Copy of the book chapters authored by you.
  • Copy of the Journal Citation Report.
  • Copies of your published papers.
  • Copies of other research scientists’ papers that cite your published papers.
  • Copies of your papers and abstracts presented at professional conferences.
  • Copies of meeting invitation for oral presentations.
  • Reprint requests from the peers in your field.
  • Comments on your published works from professional critics/journal referees or public media.
  • Copies of any other comparable evidences that demonstrate your accomplishments (such as certified certificate as independent investigator, professional license.)
  1. Third Preference EB-3

You may eligible for an employment based, third preference visa if you are a skilled or other worker as well as a professional. Your spouse and children under the age of 18 may be admitted to the United States. During the process where you and your spouse are applying for permanent resident status (status as a green card holder), your spouse is eligible to file for an Employment Authorization Document (EAD). Third preference petitions must generally be accompanied by an approved, individual labor certification from the Department of Labor.

In order to qualify as a skilled worker under the third preference, you must:

  • Be able to show at least 2 years of job experience/training
  • Be performing work for which qualified workers are not available in the U.S.
  • Have a permanent, full-time job offer and labor certification

In order to qualify as a professional under the third preference, you must:

  • Be able to show that you possess a U.S. bachelor’s degree or foreign degree that is equivalent
  • Be performing work for which qualified workers are not available in the U.S.
  • Have a permanent, full-time job offer and labor certification

Experience and education may not be substituted for a bachelor’s degree

In order to qualify as an unskilled worker (other worker) under the third preference, you must:

  • Be capable of performing unskilled labor (which requires less than 2 years experience) that is not seasonal or temporary in nature, for which qualified workers are not available in the U.S.
  • Have a permanent, full-time job offer and labor certification

There is a long backlog for visas in the category.

  1. Fourth Preference EB-4

You may be eligible for an employment-based, fourth preference visa if you are a special immigrant. The following special immigrants are eligible for the fourth preference visa:

  • Religious Workers
  • Broadcasters
  • Iraqi/Afghan Translators
  • Iraqis Who Have Assisted the United States
  • International Organization Employees
  • Physicians
  • Armed Forces Members
  • Panama Canal Zone Employees
  • Retired NATO-6 employees

Spouses and Children of Deceased NATO-6 employees

Petitioning

To petition for an employment-based fourth preference immigrant, your employer must file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. However, there are certain situations where you, the employee, may self-petition on your own behalf.

Broadcasters

Under section 203(b)(4) of the Immigration and Nationality Act, the International Broadcasting Bureau of the United States Broadcasting Board of Governors (BBG), or a grantee of the BBG, may petition for an alien (and the alien’s accompanying spouse and children) to work as a broadcaster for the BBG or a grantee of the BBG in the United States. For the purposes of this section, the terms:

  • BBG grantee means Radio Free Asia, Inc (RFA) or Radio Free Europe/Radio Liberty, Inc. (RFE/RL)
  • Broadcaster means a reporter, writer, translator, editor, producer or announcer for news broadcasts; hosts for news broadcasts, news analysis, editorial and other broadcast features; or a news analysis specialist. The term broadcaster does not include individuals performing purely technical or support services for the BBG or a BBG grantee.

All Form I-360 petitions submitted by the BBG or a BBG grantee on behalf of an alien for a broadcaster position with the BBG or BBG grantee must be accompanied by a signed and dated supplemental attestation that contains the following information about the prospective alien broadcaster:

(i)  The job title and a full description of the job to be performed; and

(ii) The broadcasting expertise held by the alien, including how long the alien has been performing duties that relate to the prospective position or a statement as to how the alien possesses the necessary skills that make him or her qualified for the broadcasting-related position within the BBG or BBG grantee.

  1. Fifth Preference EB-5 Immigrant Investors

Of particular concern to the local immigrants and business communities is learning about and choosing the appropriate category for investment-based travel and immigration to the United States. In this series, we will examine the various options, appropriateness for each particular case and risks associated with each.

In the second of our series on investment-based travel and immigration to the United States, we will look at the “EB-5” immigrant investor visa. There two types of immigration options available under this category: (A) “In General” – investment minimum of $1 million, and (B) “Targeted Employment Areas (TEA)” – investment above $500,000 in government pre-qualified projects. We will limit our discussion today to category (A). In the next article we will visit part (B) in more details and compare both categories in depth, appropriateness for each particular case and risks associated with each.

Background:

United States Code, 8 U.S.C. Section § 1153 101(b) (5) (A): Preference allocation for employment-based immigrants – Employment creation, describes the “EB-5: In General” visa category as follows:

Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise (including a limited partnership):

(i) in which such alien has invested (after November 29, 1990) or, is actively in the process of investing, capital; and

(ii) which will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant’s spouse, sons, or daughters).

The U.S. Congress created the EB-5 immigrant investor visa category in the Immigration Act of 1990 with the goal of creating jobs for American workers by attracting foreign capital to the U.S. The investor is allowed to engage in commercial enterprise, new or existing, anywhere in the US by investing at least $1 million in a new commercial enterprise which will benefit the U.S. economy.

This category is also referred to as the fifth employment-based preference (“EB-5”); it is an immigration type visa, distinct from the E-2 treaty investor nonimmigrant visa category discussed in a previous article. There are 10,000 visas available for participants each year, divided almost equally between category (A) and category (B). 

Requirements:

There are three basic requirements for this immigrant visa:

  1. Creating a New Commercial Enterprise – this can be accomplished through any of these three mechanisms:
  2. The creation of an original unique business;

 

  1. The purchase of an existing business and then immediately restructuring it, creating a new commercial organization; or

 

  1. The expansion of an existing business created after November 1990 through the investment of the “required amount,” so that a substantial change in the net worth or number of employees results from the investment of money. The term “substantial change” is defined to mean a 40% increase in either the net worth or number of employees.

 

  1. Amount of the Investment – the investor must invest a minimum of $1 million subject to upward or downward adjustment under certain circumstances.

 

  1. Create full-time employment for at least 10 US workers- a qualified employee must work a minimum of 35 working hours per week, and can’t be an independent contractor. 

EB-5 Document Checklist 

  • Bank Statements (Business and Personal)
  • Foreign Business Registration Records
  • Tax Returns (inside or outside the U.S.) (Within the last 5 years)
  • Evidence of other sources of capital (Bank Statements – twelve months)
  • Passport & I-94 (for the entire family)
  • Birth Certificate for principal applicant (and Family)
  • Name and ages of everyone in household (Children under 21 years old)
  • Marriage Certificate(s) and (divorce certificates – if any)

Other Considerations

  1. The new commercial enterprise can be any for-profit entity including sole proprietorships, partnerships, corporations, holding companies with its subsidiaries, joint ventures, business trusts, etc. Noncommercial activities, such as home ownership, do not qualify.

 

  • The investment can be in the form of cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the investor. Further, the investor must prove that the funds were obtained from a lawful source and the required capital is at risk for investment purposes.

 

  • The investor is required to be actively involved in the business either through day-to-day managerial control or through policy formulation, and cannot be a passive investor. The investor must maintain the investment for at least three years and be personally and primarily liable for the enterprise activities.

 

  • Several foreign investors seeking the same status can pool their funds, each contributing the required statutory amount with the job created allocated amongst them to satisfy the third requirement.

 

  • Investors, their spouses and unmarried children under the age of 21 get green cards; all will be conditional for the first two years, and are all eligible for citizenship after 5 years of living in the U.S.

 

  • The application can be filed before making the full required investment as long as the investor can demonstrate that they are in the process of investing and enough invested capital is at risk showing strong commitment to the investment.

Risks:

Of course, there is always the risk that the “EB-5” visa will be denied. But unlike the “E-2” investor visa, U.S. Embassies do not have unlimited discretion in adjudication, and a properly filed application should be easily approved by USCIS and the investor will only have to wait in line until a visa number is available at the U.S. Embassy. Nevertheless, careful planning in the formation of the investment must be used to insure it meets all the criteria established by USCIS regulations. The documentation which must be submitted, however, is quite extensive.

“EB-5” visas are very complex, and viable alternatives do exist. However, it is a great, practical and fast venue for immigration to the U.S. We recommend seeking the advice of qualified immigration/business counsel, not only for the preparation of the immigration paperwork, but in the investment of the underlying U.S. business entity, or the purchase of an already existing U.S. business.

Our immigration law professionals are sensitive to the needs of our clients and the members of their families. Many members of our staff are themselves foreign born and have family and/or friends who have gone through the immigration process. As a result, they have a personal and unique approach in the processing of visas and for dealing with our foreign national clientele.

Immigration to the U.S. is time-consuming and complex and our staff of business immigration law professionals can clearly explain the process in Arabic, French, Urdu, Mongolian, Russian and English. To schedule a consultation, please feel free to contact us at www.moawad.com.