EMPLOYMENT-BASED PERMANENT RESIDENCE
In 1990, Congress created a priority system for granting permanent residence to aliens based on employment skills. Annually, 140,000 immigration visas are available for principal aliens who qualify under the following five employment-based (“EB”) preference categories:
FIRST “EB-1” Priority Workers; 40,000 visas per year
- aliens of extraordinary ability in the sciences, arts, education, business and athletics
- outstanding professors or researchers
- managers and executives subject to international transfer to the United States (US)
SECOND “EB-2”; 40,000 visas per year 
- aliens of exceptional ability in the sciences, arts, or business
- advanced degree professionals
THIRD“EB-3” 40,000 visas per year
- professionals with bachelor’s degrees (not qualifying for a higher preference category)
- skilled workers (minimum two years training and experience)
- unskilled workers (maximum 10,000 visas available per year, of which 5,000 have been dedicated to adjusters under NACARA).
FOURTH “EB-4” Special Immigrants , including but not limited to 10,000 visas per year.
- religious workers a maximum of 5000 visas is set aside for religious vocational activities in the US of members of religious denominations that have bona fide nonprofit religions organizations in the US.
FIFTH “EB-5” Immigrant Investors 10,000 visas per year
- alien entrepreneurs whose enterprises will directly create 10 or more new jobs in the US; 3000 visas reserved for investors in target employment areas and 300 for Immigrant Investor Pilot Program
SPECIAL FEATURES
- This classification allows conditional residency for persons who invest $1,000,000, or $500,000 (under limited circumstances) in a new commercial enterprise that employs ten (10) US citizens or authorized immigrant workers full- time. Investors must manage the business investment on a day-to-day basis or through policy formulation.
- Immigrant investors whose petitions to remove conditions are approved will be issued Permanent Residence Cards (“green cards”). In cases where the enterprise has been abandoned or the relationship between the immigrant investor and the qualifying investment terminated or changed so that it no longer meets qualifying standards, permanent residence will be denied and the alien(s) must department the US.
REQUIREMENTS for Qualifying Investors
- The alien investor must make a qualifying investment using personally owned and legally obtained assets or indebtedness secured by personal assets (i.e. not secured by the qualifying commercial enterprise).
- The alien investor must be engaged in management of the enterprise, either through daily managerial control or through policy formulation as a corporate officer, director, or partner.
- Each multiple alien investor in the same enterprise will qualify if he or she meets the minimal capital and job creation requirements. In cases where not all multiple investors seek to immigrate to the US based on the investment, the job creation requirement can be met by those investors who seek to immigrate (based on the joint investment) by apportioning the total number of jobs created among the immigrating investors rather than among all investors.
- Note: This apportionment among joint investors does not apply to the capital requirement.
REQUIREMENTS for Qualifying Investments
- Fifth preference investments in new commercial enterprises must benefit the US economy and create full-time employment for at least ten work-authorized employees, excluding the alien entrepreneur, his or her immediate relatives, and persons in nonimmigrant status. Saving ten jobs may qualify if the qualifying investment is in a troubled business.
- The capital investment must be $1,000,000 in high employment areas and $500,000 in targeted employment areas. The capital may consist of cash, equipment, inventory, other tangible property, and/or easily convertible cash equivalents.
- The only location criteria apply to $5,000,000 investments in targeted employment areas, which include rural areas identified by the US census or OMB and areas certified by a state government to be experiencing average unemployment of at least 150% of the national average.
ITHERE IS A 3 STEP PROCEDURE THAT MUST BE FOLLOWED FOR THOSE CLASSIFICATIONS THAT REQUIRE A LABOR CERTIFICATION, :
Step 1 PERM Labor Certification
PERM stands for Program Electronic Review Management and is the system used for obtaining labor certification. It is the first step for certain foreign nationals in obtaining an employment-based green card where immigration to the US will be based upon a US job offer In PERM applications, the employer is the petitioner and the prospective immigrant is the beneficiary.
To obtain an approved PERM Labor Certification, the employer must prove (through newspaper advertising and other recruiting methods) that they were unsuccessful in recruiting a qualified U.S. worker for a certain position.The employer must be prepared to hire the foreign worker on a full-time and permanent basis.
Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the individual worker’s qualifications. In other words, the employer must establish that the job opportunity has been described without the use of unduly restrictive job requirements, unless it can demonstrate that they arise out of business necessity.
The employer must pay at least the prevailing wage for the occupation in the area of intended employment. Labor Certification is not required for 1 st, 4 th, and some 2 nd employment based categories.
Step 2 USCIS Petition
Once the Labor Certification is processed (if required), the employer or self-petitioning alien submits an employment based petition to the USCIS Service Center with jurisdiction over the geographical location where services will be rendered. Upon approval, provided that an immigrant visa is available at the time, the beneficiary can apply for adjustment of status (if present in the US) or apply to a US consulate abroad for an immigrant visa.
Step 3 Consular processing or Adjustment of Status
Aliens abroad who seek to enter the U.S. as employment based immigrants will have to apply to consulates abroad with their supporting USCIS documentation. Aliens already present in the US in nonimmigrant status may submit applications for adjustment of status and application for work authorization based upon adjustment application to USCIS.