Employment-Based Permanent Residence

There are several ways to immigrate to the United States through employment.

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

(1) Abstract

Persons who are able to 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 or 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 your original scientific, scholarly, artistic, athletic, or business- related contributions of major significance to the field
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 permanent residence relatively quickly because the labor certification process, the first step of employment-based immigration, can be omitted.

(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) Abstract

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, which is the first step of employment-based immigration, can be omitted.

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

(1) Abstract

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 United States and the manager or the executive enters the U.S. and 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 omit the labor certification process, the first step of employment-based immigration, and as a result can obtain permanent residence relatively quickly.

4. Those with advanced degree or baccalaureate degree plus at least 5 years of experience (EB-2)

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, there is a priority date for EB-2, which may prolong the process if the priority date is closed.

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 (Second Preference Employment-Based Permanent Residence EB-2)

(1) Abstract

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. In addition, even after filing the application, it is not uncommon for the case to be stopped for reasons 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 United States. 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) Conditions

Three conditions must be fulfilled in order to apply through NIW.

First of all, applicant must be working in a field that would benefit the national interest of the United States. As of yet, applicants with advanced degrees in STEM fields have a higher chance of approval. This is because currently, the U.S. desperately needs advanced minds 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 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. It is insufficient to demonstrate that one has exceptional ability. Applicant must have special knowledge, ability, experience, or remuneration compared to others in the same field. Most denied cases receive such results because this condition has not been met.

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

(3) Processing Time

There is approximately a 1.5 year processing time when one applies for NIW in the United States. If applied while residing overseas, it takes approximately 2 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 review process of NIW. In most cases, Request for Evidence is sent only once. As a result, it is crucial to determine exactly what is lacking and prepare the documents accordingly after figuring out which parts the reviewing officer wants to see more.

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, or Unskilled Worker (Third Preference Employment-Based Permanent Residence EB-3)

(1) Abstract

Those without a master’s degree or 5 years of experience after a bachelor’s degree can apply for permanent residence through Third Preference Employment-Based Permanent Residence (EB-3). However, it may take a long time to receive permanent residence through EB-3. More specifically, until one’s priority date is open, one cannot submit I-485, Application to Register Permanent Residence or Adjust Status, to USCIS.

(2) Category

EB-3 is divided into three categories: professional who has a bachelor’s degree but without a master’s 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 bachelor’s 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 master’s degree or bachelor’s degree plus 5 years of experience, the prevailing wage is much higher than EB-3 and puts the burden on the sponsoring company.

(3) Considerations

There are two main considerations when applying for employment-based permanent residence. First is whether the applicant possesses the education, major, and experience that an EB-2 or EB-3 position requires. The other consideration is the financial capability of the sponsoring company. When applying for EB-2, if the prevailing wage that has been determined by the Department of Labor is $70,000, the company must show the ability to pay the salary of $70,000 through its tax return from the start of application for labor certification (LC). Because of this reason, many of those who are eligible for EB-2 decide to proceed with EB-3, which has a relatively low prevailing wage. However, since the introduction of priority date in EB-3, those who are eligible for EB-2 apply through EB-2 even if it puts a financial burden on the sponsoring company.

(4) Procedure

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

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, because there are many who are unemployed in computer-related occupations, it may be challenging to apply for permanent residence as there will be many applicants for the advertised position.

Secondly, USCIS determines whether the sponsoring company has the financial capability to sponsor through immigrant petition (I-140). For this step, the sponsoring company must demonstrate the ability to pay the prevailing wage determined by the Department of Labor to the applicant by submitting the company’s tax return. Simply put, if the sponsoring company is financially stable, receiving permanent residence is not particularly difficult and is only a matter of time.

Finally, there is a process of applying for adjustment of status (I-485) to receive permanent residence. For an EB-3 professional or skilled worker, there is a priority date that prevents applying for adjustment of status (I-485) until one’s priority date is open, even if labor certification (LC) and immigrant petition (I-140) steps have been completed.