Employment Based Green Cards
BUSINESS-BASED IMMIGRANT VISA PREFERENCE CATEGORIES
…all terms mean the same thing!
The lawyers of Ryvin Wallace Group utilize knowledge, skill and experience to strategize the best green card options for inquiring clients. We ask you to tell us your life and business realities so we can determine potential avenues to a green card that best suit your situation. In a strategy meeting, we listen and identify the category or categories of Immigrant Visa that are applicable to your needs. We factor in everything that concerns you:
ability to preserve ongoing temporary work status,
earliest work status for spouse
children who might age out at 21 years of age
and of course: cost.
Our job is to think of immigration solutions on your behalf and then explain them to you as clearly as possible. When you say you’re ready to start, you should feel comfortable that you are going in the right direction and that you understand your odds. Understanding the nuances of the law is our job, however, we list below the 5 LEVELS OF BUSINESS-BASED IMMIGRANT VISA PREFERENCE CATEGORIES available as stated in the US Immigration & Nationality Act (INA).
LEVEL 1: EB-1 Priority Workers
EB-1(1): Aliens of Extraordinary Ability
Alien seeks entry to continue work in the area of extraordinary ability and Entry will substantially benefit prospectively the U.S.
No Employer needed as sponsor.
This category is intended for the small percentage of individuals who have risen to the very top of their field of endeavor.
Approval of an O-1 temporary visa petition for extraordinary ability does not compel USCIS to approve an EB-1(1) because the standard is higher for EB-1(1).
EB-1(2): Outstanding Researchers
3 years experience in teaching or research in the academic area – experience in teaching or research counted while working on advanced degree if degree is acquired, person had full responsibility for the class taught, or the research has been recognized as outstanding in the academic field.
Seeks entry for
comparable position at university or institute of higher education to conduct research, or
comparable position to conduct research with private employer if it employs at least 3 persons full-time in research activities and the departmental, division or institution has achieved documented accomplishments in an academic field.
No labor certification is required although an offer of employment is required in the form of a letter from the sponsoring employer.
EB-1(3): Multinational Managers
Seeks to enter U.S. in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.
Unlike the L-1 temporary visa applicant, the EB-1(3) cannot be a specialized knowledge worker abroad.
No labor certification, but a job offer by the U.S. organization, is required.
LEVEL 2: EB-2 Exceptional Ability or Advanced Degree Workers
EB-2(1): Exceptional Ability in Sciences, Arts or Business
For individuals possessing a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Proof of exceptional ability includes any three of the following:
Letter from current or former employer showing at least 10 years experience;
License to practice profession;
Person has commanded a salary or remuneration demonstrating exceptional ability;
Membership in professional association;
Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organization.
Comparable evidence may be submitted if above categories are inapplicable. This evidence may include expert opinion letters.
Requires sponsorship by an employer. EB-1(1) is preferable.
EB-2(1): Advanced Degree Worker
A US baccalaureate degree (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree.
Restated, an applicant can satisfy the advanced degree requirement, by the following:
(2) a U.S. bachelor’s degree or foreign degree equivalent plus five years of progressive, post-degree work experience.
Labor Certification is required by US DOL to approve process of having found no qualified US workers for the advanced degree position.
*EB-2 National Interest Waivers (NIWs)
An applicant for a national interest waiver must meet a three pronged test (called the NYSDOT test):
(2) the self-petitioner must demonstrate that the proposed benefit will be national in scope; and
(3) the self-petitioner must establish that he will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
In order to meet the third prong of this NYSDOT test, an applicant must do more than merely work in an area of intrinsic merit that is national in scope, as required under the first two prongs. The applicant must distinguish himself from the hypothetical minimally qualified U.S. worker in one of two ways:
(2) by demonstrating that he/she is playing a key or critical role in a project that will yield tangible benefits and is national in scope.
LEVEL 3: EB-3 Professionals, Skilled Workers and Other Workers
EB-3(1): Professionals
Cannot qualify as a professional under EB-3 if degree is based upon years of experience rather than education. However, even if the professional criteria for EB-3 does not permit the use of experience in lieu of a degree or a combination of education and experience, the skilled worker category under EB-3 does and an I-140 should not be denied where the position permits an equivalency.
Labor Certification by employer sponsor required.
EB-3(2): Skilled Workers
Labor Certification by employer sponsor required.
EB-3(2): Other Workers
Labor Certification by employer sponsor required.
LEVEL 4: EB-4 Special Immigrant Visas for Religious Workers
Seeks to enter the United States
(ii) in order to work for the organization at the request of the organization in a professional capacity in a religious vocation or occupation, or
(iii) in order to work for the organization (or for a bona fide organization which is affiliated with the religious denomination and is exempt from taxation as an organization described in section 501(c)(3) of the Internal Revenue Code of 1986) at the request of the organization in a religious vocation or occupation.
Has been carrying on such vocation, professional work, or other work continuously for at least the 2-year period.
Voluntary service not sufficient for meeting the 2-year requirement. The applicant must have been remunerated for his work.
LEVEL 5: EB-5 Investor Visas / Employment Creation Visas
Visa Checkpoints Evaluation with RWG. Obtain an evaluation by one of our attorneys to determine if the EB-5 is really your best option. Notably, investors are often not best suited to the EB-5 visa. If there are concerns with taxation on worldwide income, or no real need to be a resident of the United States, then another visa might be best for you and your family members. Also, many wealthy investors do not need to take the EB-5 visa route to a US green card. Let us talk to you about other options, such as:
L-1A Multinational Manager Visas. A potential EB-5 investor might discover that they have an easier road to green card. Their company may already have a branch office (subsidiary, parent, joint venture) in the United States. And transferring oneself as an intracompany manager/executive works nicely to qualify for L-1A Intracompany Visa status, good for 7 years – and leads to a green card. The green card is available under the same qualifications for an intracompany transferee and is quickly obtained – usually within one year (although that can be slowed due to complicating factors). This option costs much less than the EB-5 visa which takes both the threshold investment and the legal fees to obtain – and has a higher risk of being lost because of its duration until it is perfectly secured.
O-1 Visas for Extraordinary Businesspersons. As a potential high net-worth Investor, you might be an extraordinary businessperson. Let us evaluate your road to wealth to see if the evidence can demonstrate that you qualify for an O-1 visa and its corresponding manner of obtaining Permanent Residence.
EB-5 New Business vs. Regional Center. The following comments are a cursory analysis on the difference in using a new business versus a Regional Center to ride the EB-5 to the green card finish line. Notably, an EB-5 goes through two stages of approval and none of the substantive qualifications to obtain initial EB-5 approval, nor evidence needed to remove the 2-year temporary conditions on an EB-5 are laid out here. We do provide an opinion on which method is better for which investor as well as some reasoning and cautions.
New businesses have many risks inherent in the immigration approval process. On top of that, new businesses have pure numbers working against them which is that a large percentage of new business fail within the first/few years. We generally do NOT recommend using a new business, which is NOT owned by a Regional Center, as the EB-5 model.
If a person has an existing business which meet the qualifications for EB-5 status and has business indicators showing it will continue to meet EB-5 requirements two years after initial green card approval, only then should he file a non-Regional Center application. Example: existing E-2 or L-1 Temporary Visa holder wishing to upgrade to green card using EB-5 status. To clarify further, this person typically is an individual already working pursuant to E-2 Treaty Investor status or an L-1A Multinational Manager. He or she owns a decent business and wishes to upgrade visa status by filing an EB-5 petition based on BOTH existing or prospective business success of the entity in which he is invested. This person may file for EB-5 status using their own company.
The advice given by practicing business immigration attorneys is that if one has money to put at risk, put it into a Regional Center; and not any Regional Center either.
Note that Regional Centers can contain multiple investments under their umbrella name, so an investor wants to be certain that he or she is signing up for an investment that (since 12/09 is permitted) has been pre-cleared by US CIS as a vehicle determined to be sound on its immigration credentials, which inherently include financials viewed as viable/approvable financials from the US CIS’ point of view. An investor must still be forewarned that US CIS can make a determination of the soundness of a Regional Center (a pre-clearance) for such Regional Center to essentially “guarantee” EB-5 approvability for any GENERIC investor.
Yet, this does not predict approval for any individual in particular who comes with his own set of background issues. Also, such pre-clearance does not guarantee that the investment will stand up under its own business model over time, nor up against economic forces that are out of the control of the Regional Center.
At a minimum, one should obtain advice from three distinct and independent sources when applying for a visa based on investment in a Regional Center: (1) an immigration attorney who is NOT affiliated with the Regional Center to make sure that all immigration venues for the family, immediate and extended, are explored,(2) a tax attorney who has global tax experience and preferably affiliates overseas to obtain first-hand information about source of money problems and restrictions in other countries and (3) a valuations expert who can draw on knowledge of the local market as well as the nature of the investment vehicle.
*LABOR CERTIFICATION
The most commonly used employment based categories, EB-2 and EB-3, require a petitioning employer to first obtain a certified Foreign Labor Certification (PERM) Application from the U.S. Department of Labor (DOL) before filing an I-140 Immigrant Worker petition. One of the primary purposes behind the filing of a PERM, is to ensure that the U.S. labor market has been adequately tested for qualified, willing and able U.S. citizen workers, before the applicant is approved for permanent resident status. The PERM process (the preparation and submission of a Foreign Labor Certification Application) requires a thorough testing of the labor market to see if any US workers are otherwise available (instead of allowing a foreign worker become a US worker), through a series of required recruitment steps.
The recruitment process must be carefully managed and documented. The ultimate Labor Certification application submitted to US DOL is a 10-page electronic form which relies heavily on the employer’s self-attestations, under penalty of perjury, that no qualified U.S. worker was found. An employer’s Labor Certification may be audited for a number of reasons.
Requirements for the Position: The employer must confirm the education, experience, and special skills required to fill the position. These requirements must represent the bona fide minimum requirements for the position. They should not be tailored to the foreign employee’s qualifications; they should not be overly restrictive (so as to disqualify all but the applicant for whom Labor Certification is sought). The foreign national must be able to document that he/she met the PERM position requirements prior to starting employment with the U.S. sponsor. There are certain exceptions.
Recruitment:The employer must describe to DOL, and later prove if asked, its recruitment efforts to demonstrate that a qualified, willing, and able US worker is not available to fill the position. All of the following recruitment efforts must be completed within a 180 day period before the PERM application filing date; with no more than one non-mandatory recruitment action occurring within the 30 days prior to filing the application.
(1) JOB ORDER WITH SWA. A “Job Order” must be placed with the State Workforce Agency for at least 30 calendar days.
(2) NEWSPAPER ADVERTISEMENT. Two Sunday-edition print advertisements must be placed in a major paper serving the geographical area of intended employment.
(3) INTERNAL POSTING. A notice of the employment opportunity must be physically posted for 10 consecutive business days in a conspicuous place at the place of employment. Further, the internal posting notice must be published in any and all in-house media, in accordance with the normal recruitment procedures used for similar positions in the your organization. This would include a job board, Intranet site, newsletters, etc.
PLUS 1-of-3 ADDITIONAL RECRUITMENT STEPS
(4) JOB FAIR participation.
(5) EMPLOYER’s EXTERNAL Website Posting.
(6) JOB SEARCH WEBSITE Postings (ie, Monster.com). Web-based postings of the job opportunity made in conjunction with placement of the newspaper advertisement are considered additional recruitment.
(7) EMPLOYEE REFERRAL PROGRAMS
(8) LOCAL/ETHINC NEWSPAPER Advertisements
(9) ON CAMPUS RECRUITING.
(10) TRADE or PROFESSIONAL ORGANIZATION Media.
(11) PRIVATE EMPLOYMENT FIRM Listings
(12) RADIO or TV Advertisements
Recruitment Report and Post Recruitment:The employer must sign and maintain a detailed report describing the recruitment steps and the results achieved. If a qualified, willing, and able US applicant is found to be available for the position offered in the PERM application, the employer is not required to hire the applicant, but may not file the PERM application with the DOL.
Review of the Labor Certification application may lead to a DOL “audit.” The DOL may randomly, or for specific cause, audit applications. If an application is selected for audit, the employer will generally have 30 days to submit the required documentation. Requested documentation could include evidence of recruitment activities, resumes of applicants, prevailing wage determinations, or business justification for position requirements, etc.
Please contact one of the partners of Ryvin Wallace Group to set up a consultation to explore your permanent business immigration options today!
| Christy Wallace | 1(703)531-0790 | christy@ryvinlaw.com |
| Michael Ryvin | 1(415)888-8296 | michael@ryvinlaw.com |
