Immigration

What Types of Work-Based U.S. Immigrant Visas Are Available?

By Richard Link, Attorney
Eligibility for an immigrant visa or to adjust status to permanent resident on the basis of employment is divided into five categories

Each year the U.S. government makes room for an additional 140,000 permanent residents—either through the grant of an immigrant visa or adjustment of status—on the basis of employment in the United States.

There are five different classifications (or categories) of employment-based immigrants, called EB-1, EB-2, EB-3, EB-4, and EB-5. The “EB” stands for “employment-based.”

EB-1: “Priority Workers”

The EB-1 category is for workers who are the United States’s top priority when it comes to employment-based immigration. The government sets aside 40,000 permanent resident slots for EB-1 workers and their spouses and children every year, plus any permanent resident slots that aren’t used by EB-4 and EB-5 workers.

There are actually three types of EB-1 workers.

“Persons of extraordinary ability” in the arts, science, education, business, or athletics can get EB-1 status, and they are perhaps the most favored. Their skills are so beneficial to the United States that they do not have to be sponsored by any employer, as long as they intend to do the same type of work for which they have extraordinary ability. The extraordinary ability must be demonstrated by sustained national or international acclaim, and the person's achievements must have been recognized in the field of his or her expertise.

The EB-1 category is also for outstanding professors and researchers. The person must be recognized internationally as outstanding in a specific academic area, with at least three years' experience in teaching or research in the academic area. A university or an employer who conducts research must have offered the person a job, but the U.S. government does not require the employer to prove that it can’t find any U.S. worker for the job. That is, the employer does have to go through the “labor certification” process in order to sponsor the worker.

The other type of EB-1 worker is the manager or executive for a multinational company who is transferring to the United States. The person must have been employed as a manager or executive at the foreign company for at least one of the previous three years. When in the United States, the person must be a manager or executive for the same company or a U.S. parent, subsidiary, or affiliate of that company. No labor certification is required.

EB-2: Workers With an “Advanced Degree” or “Exceptional Ability”

EB-2 workers are the United States’s second-most preferred type of employment-based immigrants. The government sets aside 40,000 permanent resident slots for EB-2 workers and their spouses and children every year. Also, if any of the 40,000 EB-1 permanent resident slots aren’t used, they go towards additional EB-2 workers and their families.

There are two types of EB-2 workers. Persons with an “advanced degree” can be classified EB-2, and they have perhaps the easiest time proving their eligibility. An "advanced degree" is any U.S. academic or professional degree or a foreign equivalent degree above that of baccalaureate. So, for example, a master’s degree or a doctorate would qualify. Moreover, a U.S. baccalaureate degree (a bachelor’s degree like a B.A. or B.S.) or a foreign equivalent degree followed by at least five years of progressive experience in the person’s specialty is considered the equivalent of a master's degree, and thus qualifies the person for EB-2 classification.

The EB-2 category is also for persons with exceptional ability in the sciences, arts, or business who will substantially benefit the U.S. national economy, cultural or educational interests, or welfare. "Exceptional ability" means a degree of expertise significantly above that of the ordinary person.

Most EB-2 workers will need a job offer from a sponsor and labor certification. Both those requirements can be waived if doing so would be in the U.S. “national interest,” on the basis of the importance of the person’s work and credentials.

EB-3: Any Type of Worker

EB-3 workers, broadly speaking, are everyone who can’t fit into the other employment-based categories. The government sets aside 40,000 permanent resident slots for EB-3 workers and their spouses and children every year. Also, if any EB-1 or EB-2 permanent resident slots go unused, they are added to the EB-3 amount. No worker can get an EB-3 visa without a sponsoring employer who has obtained a labor certification.

There are three types of EB-3 workers. One is a “professional,” who holds at least a U.S. baccalaureate degree or a foreign equivalent degree and who is a member of the "professions." A profession is an occupation requiring at least a baccalaureate degree for entry into the occupation.

Another type of EB-3 worker is one who can perform “skilled labor.” Skilled labor is work that requires at least two years' training or experience. Relevant post-secondary education may be considered as training.

The other type of EB-3 worker is one who is capable of performing "unskilled" labor; that is, work that requires less than two years' training or experience. Of the 40,000 EB-3 permanent resident slots each year, only 5,000 can go to unskilled workers and their family members.

EB-4: “Special Immigrants”

The EB-4 category is made up of several different types of “special immigrants,” some of whom are included in the employment-based category even though their ability to become permanent residents has nothing to do with a job offer.

No person in the EB-4 category requires labor certification. Only 10,000 permanent resident slots are made available to persons in the EB-4 category each year.

Those in the EB-4 category include:

  • Religious Workers
  • Special Immigrant Juveniles
  • Broadcasters
  • G-4 International Organization or NATO-6 Employees and Their Family Members
  • International Employees of the U.S. Government Abroad
  • Certain Armed Forces Members
  • Panama Canal Zone Employees
  • Certain Physicians
  • Afghan and Iraqi Translators
  • Afghan and Iraqi Nationals Who Have Provided Faith Service in Support of U.S. Operations

EB-5: Investors

The EB-5 category is employment-based in the sense that it’s designed to encourage employment of U.S. workers through an investment made by the EB-5 permanent resident. The government sets aside 10,000 EB-5 permanent resident slots each year. No labor certification is necessary.

There are two different ways to qualify in the EB-5 category. The first is through an investment in one’s own business that will create at least ten full-time jobs. The minimum investment amount is $1 million, unless the business is in a “targeted employment area,” which generally is either a rural area or an area experiencing high unemployment. Investment can be as low as $500,000 in a targeted employment area.

The second and more popular way to get permanent residence in the EB-5 category is by investing in a “regional center.” These are businesses run by others who take care of the job-creation requirement. They usually are in targeted employment areas and therefore require an investment of only $500,000 rather than $1 million. Three thousand of the 10,000 annual EB-5 permanent resident slots are reserved for regional center investors and their families, although as it turns out, regional center investors take most of the EB-5 permanent resident slots.

EB-5 permanent residents first get “conditional” permanent residence for two years, based on their commitment of funds and an expectation of what the business will do. To get unrestricted permanent residence after that, they must show that the investment funds have produced the promised jobs.

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