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Employment-Based Preference Categories Guide

Learn about alternative routes to permanent residence employment-based preference categories. Criteria, requirements, and visa availability explained.

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Employment-Based Preference Categories Guide

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  1. Preference Categories And Alternatives to Labor Certification • Judy J. Lee, Partner • Avalyn C. Langemeier, Partner

  2. 1. Extraordinary Ability * First 2. Outstanding Researcher* 3. Multi-national Executive/Manager * Second 2. Exceptional Ability – PERM, NIW & Schedule A, Group 2 1. Skilled Worker Third 2. Professional (job requires a Bachelors Degree) Permanent ResidenceEmployment-Based Preference Categories *Labor Certification NOT Required (2-Step Process) 1. Advanced Degree Professional – PERM & National Interest Waiver

  3. May 2015 Visa Bulletin – Employment-Based

  4. Multinational Executive or Manager Transferee – EB 1-3 INA 203(b)(1)(c), 8 USC 1153(b)(1)(c); 8 CFR 204.5(j) CRITERIA TO QUALIFY • Qualifying relationship between U.S. employer and Foreign employer • Parent, subsidiary, affiliate, branch, joint venture • At least 50% ownership or controls the entity if less than 50% • Doing business for at least 1 year • Documentation of relationship: • USCIS Draft RFE Template - AILA Doc. 15010742 (1/7/15) • Evidence required for a small business vs. publicly traded corporation • VIBE checks – register with Dun & Bradstreet

  5. Multinational Executive or Manager Transferee – EB 1-3

  6. Multinational Executive or Manager Transferee – EB 1-3 • Foreign employment for one year in the past 3 years is Executive or Managerial; and • Proposed U.S. employment will be Executive or Managerial • Detailed job descriptions – percentage breakdown of duties & responsibilities • Employment verification letter for foreign employment, etc. • List of employees supervised and their job duties, degrees, etc. • Functional Manager – must manage an “essential” function

  7. EB 11-Extraordinary Ability INA 203(b)(1)(A), 8 USC1153(b)(1)(A); 8 CFR 204.5(h) “Sustained national or international acclaim; Small percentage at the top of the endeavor; will substantially benefit prospectively the U.S.”, and: • 1 major international award or at least 3 of 10 criteria • Fields of Endeavor: Sciences, Arts, Education, Business or Athletics • Petitioner: Employer or Self • Priority Date: Established on the date the I-140 is filed • Visa Availability: EB-11 current for all countries

  8. EB 11-Extraordinary Ability INA 203(b)(1)(A), 8 USC 1153(b)(1)(A); 8 CFR 204.5(h)(3); and USCIS EB1-1 Draft RFE Template, AILA Doc. 10091470 (Posted 9/16/10) Requirements: 1 major international honor or at least 3 of the following: • Receipt of lesser nationally or internationally recognized prizes or awards for excellence; • Membershipin associations in the field requiring outstanding achievement; • Published material about the alien in professional or major trade publications or other major media; • Participation as a judge of the work of others, either individually or on a panel; • Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field; • Authorship of scholarly articles in the field; • Work displayed at artistic exhibitions or showcases; • Performance of a leading or critical role in distinguished organizations; • High salary or other significantly high remuneration in relation to others in the field; and • Commercial successes in the performing arts.

  9. EB 12-Outstanding Professor or Researcher INA 203(b)(1)(B), 8 USC 1153(b)(1)(B); 8 CFR 204.5(i) “Recognized internationally as outstanding in the academic field” • At least 3 years experience • And at least 2 of 6 criteria • Fields of Endeavor: Academic fields • Petitioner: Employer required; no self-petition option • Requires a permanent offer of employment – tenure, tenure track or term of indefinite or unlimited duration (USCIS Memo - AILA Doc. 06060860; 6/8/06) • Employer is a university or institution of higher learning or private employer with 3 full time researchers • Priority Date: Established on the date the I-140 is filed • Visa Availability: EB-12 current for all countries

  10. EB 12-Outstanding Professor or Researcher Criteria 8 CFR 204.5(i)(3)(i)(A)-(F); Kazarian v. USCIS, 596 F.3d 115 (9th Cir. 2010) Internationally recognized as outstanding in the academic field as shown by at least 2 of the following in the academic field: • Receipt of major prizes or awards for outstanding achievements • Membership in associations which require outstanding achievements • Published material in professional publications written by others about the beneficiary’s work • Participation, either individually or on a panel, as the judge of the work of others in the same or allied academic field • Original scientific or scholarly research contributions to the academic field • Authorship of scholarly books or articles in scholarly journals with international circulation

  11. USCIS Guidance Memo on EB11 & EB12 • USCIS Policy Memo dated December 22, 2010 – 24 pages • Provides guidance to USCIS officers regarding analysis they should use when reviewing Extraordinary Ability and Outstanding Researcher immigrant visa (Form I-140) petitions • Establishes a 2 part adjudicative approach to evaluating evidence (in agreement with the Kazarian v. USCIS case) • Evaluate each type of evidence submitted to determine if it meets the parameters specified in the regulations (“regulatory criteria”) • Consider all the evidence in totality in making a “final merits determination” regarding the high level of expertise for the immigrant classification • Memo contains helpful charts that detail each criteria and provide examples of what type of evidence might be acceptable http://www.uscis.gov/USCIS/Laws/Memoranda/i-140-evidence-pm-6002-005-1.pdf

  12. Exceptional Ability in Sciences or Arts – Schedule A, Group II INA 203 (b)(2), 8 USC 1153(b)(2); 20 CFR 656.15(d) • “Exceptional Ability” – defined as widespread acclaim and international recognition from experts in the field • Sciences or Arts field – any field of study offered at a college or university • Study at a college or university is not required; degree is not required • Beneficiary practiced the Science or Art during the year before filing the application and intends to practice same in the U.S. & Beneficiary’s work requires exceptional ability. • Requires a long term offer of U.S. employment and certain PERM elements: • Prevailing Wage Determination from Department of Labor • PERM Notice of Filing • However, no  Recruitment of U.S. workers • Documentation of “Exceptional Ability” – at least 2 of 7 criteria • File Form I-140, PERM ETA 9089, PERM Notice of Filing & supporting evidence directly with USCIS • Premium Processing is available

  13. Exceptional Ability in Sciences or Arts – Schedule A, Group II 20 CFR 656.12(d)(1)(i)–(vii) Documentation of “Exceptional Ability” – Evidence of at least 2 of the following 7 criteria • Receipt of internationally recognized prizes or awards for excellence • Membership in associations which require outstanding achievements • Published material in professional publications written by others about your work • Participation as the judge of the work of others in the same field • Original scientific or scholarly research contributions of major significance the field • Authorship of published scientific or scholarly articles in journals with international circulation • Evidence of display of work at artistic exhibitions in more than one country NOTE: Criteria are similar to EB11 and EB12 but standard applied by USCIS in adjudication is lower.

  14. EB-2 National Interest Waiver (NIW)(Non-Physicians) INA 203(b)(2)(B)(i); Mississippi Phosphate, EAC-92-091-50126 (AAU July 21, 1992); NYSDOT, 22 I & N Dec. 215 (1988). • Advantages: Can self-petition and waives PERM Labor Certification. • Disadvantage: More subjective review than some other types of applications. • Requirements: • Must be a member of the professions holding an advanced degree or have exceptional ability in the arts, sciences or business, and • work is in the national interest. • File: Form I-140, PERM ETA 9089 (Employee section only), and supporting documents, directly with USCIS • No Premium Processing Available for NIW

  15. EB-2 Professionals with Advanced Degrees INA 203(b)(2), 8USC 1153(b)(2), 8 CFR 204.5(k) • Member of a profession as listed in INA 101(a)(32), as well as any occupation for which a US baccalaureate degree or foreign equivalent is the minimum requirement for entry into the occupation • Have an advanced degree – Master’s, PhD, M.D., J.D., etc. • Master’s Degree equivalence can be a Bachelor’s Degree with 5 years progressively responsible post bachelor’s degree experience • Degree can be in a related field

  16. EB-2 Exceptional Ability in the Sciences, Arts, or Business 8 CFR 204.5(k)(2); 8 CFR 204.5(k)(3)(ii)(A)-(F) Exceptional Ability: a degree of expertise significantly above that ordinarily encountered. Requires 3 or more of the following: • An official academic record showing 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; • Letters documenting at least ten years of full-time experience in the occupation 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 remuneration for services which demonstrates exceptional ability; • Membership in professional associations; • Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

  17. “National Interest” Test Mississippi Phosphate test: • Improving the U.S. economy; • Improving wages/working conditions of U.S. workers; • Improving education and training programs for U.S. children and under qualified workers; • Improving health care; • Providing more affordable housing for young and/or older, poorer U.S. residents; • Improving the U.S. environment and making more productive use of natural resources; • A request from an interested U.S. governmental agency.

  18. “National Interest” Test NYSDOT test: • Employment sought is in an area of substantial intrinsic merit • Proposed benefit must be national in scope; • U.S. national interest adversely affected if labor certification were required

  19. Questions Judy J. Lee Partner 713.335.3971 jlee@fosterglobal.com Board Certified - Immigration and Nationality Law Texas Board of Legal Specialization Avalyn C. Langemeier Partner 713.625.9232 alangemeier@fosterglobal.com Board Certified - Immigration and Nationality Law Texas Board of Legal Specialization

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