Employment-Based Permanent Residence

There are several ways to obtain Legal Permanent Residence in the U.S. through employment, as outlined below.

1. Persons of Extraordinary Ability (EB-1A)

(1) Overview

Individuals who can demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim can apply for permanent residency without company sponsorship.

(2) Documentary Evidence

Applicant can present internationally acclaimed awards. However, one can apply without awards if one can demonstrate more than three of the following criteria:

1. Evidence of receipt of lesser nationally internationally recognized prizes or awards for excellence
2. Evidence of your membership in associations in the field which demand outstanding achievement of their members
3. Evidence of published material about you in professional or major trade publications or other major media
4. Evidence that you have been asked to judge the work of others, either individually or on a panel
5. Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
6. Evidence of participation / Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field / 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
7. Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
8. Evidence of your commercial successes in the performing arts

(3) Advantages

Applicant can self-sponsor and obtain legal permanent residence relatively quickly because the labor certification process—the first step of employment-based immigration—can be bypassed.

(4) Disadvantages

USCIS review standards are high. It is difficult to demonstrate extraordinary ability in one’s field.

2. Outstanding Professors & Researchers (EB-1B)

(1) Overview

Those who are able to demonstrate international recognition for outstanding achievements in a particular academic field or have at least 3 years of experience in teaching or research in that academic area can apply.

(2) Documentary Evidence

One can consider EB-1B if more than two of the following criteria can be met:

1. Evidence of receipt of major prizes or awards for outstanding achievement
2. Evidence of membership in associations that require their members to demonstrate outstanding achievement
3. Evidence of published material in professional publications written by others about the alien’s work in the academic field
4. Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
5. Evidence of original scientific or scholarly research contributions in the field
6. Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

(3) Advantages

One must obtain a job offer from the employer but can obtain permanent residence relatively quickly because the labor certification process—the first step of employment-based immigration—can be bypassed.

3. Multinational Manager or Executive (EB-1C)

(1) Overview

Those who have been employed in a managerial or executive capacity at the parent company or affiliates for at least 1 of the past 3 years are eligible. Commonly, a company in the foreign country establishes a branch or a local office in the U.S. and the manager or the executive enters the U.S. and manages or oversees operations with Intracompany Transferee visa (L), Treaty Traders visa (E-1) or Treaty Investors visa (E-2). Please note that a specialized knowledge worker who is eligible for Intracompany Transferee Specialized Knowledge visa (L-1B) is not included in this category.

(2) Documentary Evidence

1. Career certificate that proves employment of at least 1 of past 3 years at the parent company or an affiliated company and documents that show that the U.S. company was in operation for at least one year
2. Evidence of manager or executive job position
3. Evidence of sustained business activity of the U.S. company (If the U.S. company stops conducting business after one applies for permanent residence, it is difficult to receive approval one’s application)
4. Evidence that the particular business has enough organization to require a manager or an executive (organization chart)

(3) Advantages

Applicant can obtain legal permanent residence relatively quickly because the labor certification process—the first step of employment-based immigration—can be bypassed.

4. Those with advanced degree or baccalaureate degree plus at least 5 years of experience (EB-2: Second Preference Employment-Based Permanent Residence)

Those with an advanced degree or baccalaureate degree plus at least 5 years of experience can obtain permanent residence quickly through second preference employment-based permanent residence. However, since a Priority Date system has an effect on the EB-2, there may be periods when the visa bulletin is not current, which can result in longer processing times.

Important information to note for EB-2 is that the prevailing wage determined by the Department of Labor is high. When applying for employment-based permanent residence, the sponsoring company must demonstrate the ability to pay the prevailing wage. When determining the prevailing wage, the Department of Labor considers the possession of an advanced degree or a baccalaureate degree plus at least 5 years of experience. Consequently, the prevailing wage is relatively high. If the sponsoring company fails to demonstrate the ability to pay this prevailing wage from the first step of the process until the applicant receives permanent residence, the case is denied.

Because of the high prevailing wage, those who are eligible for EB-2 often opt to apply for permanent residence through third preference as “professionals” whose job requires at least a U.S. baccalaureate or foreign equivalent degree or “skilled workers” whose job requires a minimum of 2 years training or experience.

However, as processing time for third preference employment-based permanent residence is increasing again, more individuals choose to proceed with EB-2 despite the high prevailing wage.

5. NIW: National Interest Waiver (EB-2: Second Preference Employment-Based Permanent Residence)

(1) Overview

Although there are many individuals who want to obtain permanent residence, it is difficult to find a company that is willing to sponsor for permanent residence. Moreover, even after an application is filed, it is not uncommon for the case to be stopped due to circumstances such as closure of sponsoring company or lay-off.

There is a way to apply for permanent residence without a sponsor company: NIW (National Interest Waiver). NIW aims to retain those who have received an advanced degree and exhibit exceptional ability in their fields in the U.S. Generally, when one applies for employment-based permanent residence, one must first receive a labor certification (LC) then submit Immigration Petition for Alien Workers (Form I-140) and Application to Register Permanent Residence or Adjust Status (Form I-485) to USCIS. However, unlike the regular second preference employment-based permanent residence, NIW waives the first step of obtaining labor certification for an applicant who would benefit the national interest of the U.S. In other words, if one applies through NIW, one can submit Immigration Petition for Alien Workers (Form I-140) and Application to Register Permanent Residence or Adjust Status (Form I-485) to USCIS immediately.

The procedure is simple. The applicant signs and applies for permanent residence without the sponsoring company. In addition, after the 2016 ruling change, the bar for NIW has lowered substantially. Now, those that are in fields outside of STEM can also apply.

(2) Criteria

In order to be eligible to apply under the NIW category, you must meet at least 3 criteria of the following:

First of all, applicant must be working in a field that would benefit the national interest of the U.S. As of yet, applicants with advanced degrees in STEM fields have a higher chance of approval. This is because the U.S. currently has a strong demand for advanced expertise in STEM fields. However, after the change of precedent by the court, it is possible to prove that research and other endeavors of those who are not in STEM fields are beneficial to the U.S. national interest. Nowadays, entrepreneurs, company executives, educators, and those in finance also apply for permanent residence through NIW.

Secondly, the applicant must specifically describe how one will perform work that advances the national interest in the U.S. Previously, the number of articles in major journals and the numbers of their citations were important. As a result, it was impossible for those without published articles or writings to apply for NIW. Nowadays, however, if one can rationally demonstrate how one can benefit the national interest whether through employment in the U.S. or establishment of one’s company with a business plan, one may be eligible for NIW.

Thirdly, the applicant must show that omission of labor certification (LC) benefits the U.S. national interest. Demonstrating one’s exceptional ability along is not sufficient. The applicant must possess distinctive knowledge, skills, experience, or remuneration that sets them apart from others working in the same field. Most denied cases are due to the applicant’s failure to meet this requirement.

The recommendation letter is one of the important documents when applying for NIW. The outcome may differ depending on who writes the recommendation letter. It is not the number of recommendation letters that is important, but rather who has written them.

(3) Processing Time

There is approximately 2 years processing time when one applies for NIW in the U.S. If applied while residing overseas, it takes approximately 3 years before receiving immigrant visa as there is an interview at the U.S. Embassy after USCIS approval.

(4) Request for Evidence (RFE)

There are many instances where Request for Evidence is received during the NIW review process, and in most cases, Request for Evidence is sent only once. Therefore, it is crucial to accurately identify what information is missing and prepare the necessary documents carefully, based on the specific concerns raised by the reviewing officer.

Although all fields are now eligible for NIW, the threshold for approval is high except for STEM. Hence, it is important to receive accurate advice about possibility of approval for one’s case before applying for NIW. If possibility of approval is low, one can avoid trial and error by proceeding with another method.

6. Professional, Skilled Worker, Unskilled Worker (EB-3: Third Preference Employment-Based Permanent Residence)

(1) Overview

Those without an advanced degree or 5 years of experience after a baccalaureate degree may apply for permanent residence through Third Preference Employment-Based Permanent Residence (EB-3). However, obtaining permanent residence through EB-3 can take a significant amount of time. Specifically, applicants cannot submit the Application to Register Permanent Residence or Adjust Status (Form I-485) to USCIS until their priority date becomes open.

(2) Category

EB-3 is divided into three categories: professional who has a baccalaureate degree but without an advanced degree or 5 years of experience, skilled worker who has 2 years of experience in the field, and unskilled worker who does not have any experience. For a professional, the job position needs to require a baccalaureate degree. For example, most computer programmer positions require a bachelor’s degree and those with a bachelor’s degree in a relevant field may apply as professional through EB-3. However, a sushi chef position does not require a bachelor’s degree and may apply for EB-3 as skilled worker with 2 years of experience. It is important to note the experience that was gained from the current job cannot be recognized as a valid experience unless one applies for permanent residence with different job title and job duty from those of one’s current job.

Before the introduction of priority date for EB-3, those who were eligible for EB-2 applied for permanent residence through EB-3. This is because if one applies through EB-2, which required an advanced degree or baccalaureate degree plus 5 years of experience, the prevailing wage is much higher than EB-3 and puts the burden on the sponsoring company. However, given the growing disparity in processing times, it is now advisable to apply under the EB-2 category if you meet the qualifications.

(3) Considerations

There are two main considerations when applying for employment-based permanent residence. The first is whether the applicant possesses the education, major, and experience that an EB-2 or EB-3 position requires. The second consideration is the financial capability of the sponsoring company. For example, if the Department of Labor determines the prevailing wage of an EB-2 position to be $70,000, the company must demonstrate its ability to pay the salary of $70,000 through its tax returns starting from the labor certification (LC) application. Because of this requirement, many of those who are eligible for EB-2 choose to proceed with EB-3, which has a relatively lower prevailing wage.

(4) Procedure

Application process for Employment-Based Permanent Residence can be divided into the three parts as below.

First, a labor certification (LC) must be obtained from the Department of Labor. The result can be received through a process called PERM. In this process, the Department of Labor evaluates whether the sponsoring company tried to hire a U.S. citizen or a permanent resident with similar qualifications as the applicant in a fair manner. If the applicant has a share in the sponsoring company or is a relative of the employer, it may be difficult to obtain the LC because the sponsoring company cannot make a fair hiring effort. If a U.S. citizen or permanent resident who meets all the qualifications applies for the position that is advertised, it is difficult to proceed with employment-based permanent residence case. In reality, there is often a high number of unemployed candidates in the computer-related fields, so when job openings are advertised, many qualified applicants apply, which can make it challenging to obtain permanent residence through employment sponsorship.

Second, at the immigration petition stage (Form I-140), USCIS reviews whether the sponsoring company has the financial capability to sponsor the permanent residence petition. To demonstrate this, the company submits its tax returns to USCIS to prove it can pay the prevailing wage set by the Department of Labor. Simply put, if you have a financially stable sponsor, obtaining permanent residence is just a matter of time and usually not difficult.

Third, there is a process of applying for adjustment of status (Form I-485) to receive permanent residence. For EB-3 professionals and skilled workers, the presence of a priority date means that even after completing the Labor Certification (LC) and immigrant petition (Form I-140) stages, they must wait until their priority date opens before they can apply for adjustment of status (Form I-485).