You may be eligible for an employment-based, first-preference visa if you are an alien of extraordinary ability, are an outstanding professor or researcher, or are a certain multinational executive or manager. A “visa” in this context means a green card or lawful permanent residence. Each occupational category has specific requirements that must be met.
Obtaining a U.S. green card under EB1 category is typically easier than doing so in any other employment-based visa categories. The reason is that the employer does not need to start by attempting to recruit U.S. workers for the job and then seeking labor certification (confirmation that no such workers are available) on the employee’s behalf. This process tends to take many months and involve staggering complexity.
In fact, within the subcategory for workers of extraordinary ability (described below), the foreign national does not even need a job offer from a U.S. employer at all.
To qualify for this category, you must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. This list is open-ended, and extraordinary ability in all fields are accepted. The person’s achievements must have been publicly recognized and resulted in a period of sustained national or international acclaim. This often involves showing that the foreign national is a widely acknowledged leader in the particular artistic, educational, business, or athletic field.
No job offer is needed in this subcategory, so long as the foreign national will continue working in the field of expertise after arriving in the United States. However, if the worker has received a job offer from a U.S. employer, that will always boost her/his chance of getting the EB1 application approved.
You may qualify for the Extraordinary Ability category in different ways.
First: Provide evidence of a one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal). However, there are many fields where there is no one-time achievement like those mentioned above. Therefore, Courts made it flexible if there are no-time achievements in your field. If evidence of one-time achievement does not apply to the alien’s occupation, comparable evidence is accepted. However, the comparable evidence must meet two elements to qualify (1) level of expertise indicating that the individual is one of that small percentage who has risen to the very top of their field of endeavor and (2) that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.
Second: If that petitioner does not submit this evidence of either one-time achievement or comparable evidence, then he or she must provide sufficient qualifying documentation that meets at least three of the ten categories listed at 8 C.F.R. § 204.5(h)(3)(i) – (x). Those categories are:
(i) Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(ii) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
(iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
(iv) Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
(v) Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
(vi) Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
(vii) Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases;
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, about others in the field; or
(x) There is evidence of commercial success in the performing arts, as shown by box office receipts or records, cassette, compact disk, or video sales.
You must demonstrate international recognition for your outstanding achievements in a particular academic field. You must have at least 3 years’ experience in teaching or research in that academic area. You must be entering the United States to pursue tenure or tenure track teaching or a comparable research position at a university, the institution of higher education or private employer.
You must provide an offer of employment from the prospective U.S. employer. The job offer for which the applicant is coming to the U.S. must be a specific tenured or tenure-track teaching or research position at a university or an institution of higher learning. Alternatively, if the position is at a research organization, it must be a permanent position. (Showing permanence can be a bit dicey in cases where the position is based on grant money that will run out in a year – but this can be overcome by showing that the employer intends to seek continued funding and that a reasonable expectation of success exists, such as a track record of renewed funding
Not every type of employer can make use of this visa category. It must be a “qualified employer,” meaning either a university or institution of higher education or a department, division, or institute of a private research entity with at least three full-time researchers on staff. The private U.S. employer will also need to show a history of making significant achievements in research.
No labor certification is required. You must meet at least 2 of the 6 criteria listed (or comparable evidence if any of the criteria do not readily apply) below:
Evidence of receipt of major prizes or awards for outstanding achievement
Evidence of membership in associations that require their members to demonstrate outstanding achievement
Evidence of published material in professional publications written by others about the alien’s work in the academic field
Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
Evidence of original scientific or scholarly research contributions in the field
Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field
You must have been employed outside the United States for at least 1 year in the 3 years preceding the petition or the most recent lawful nonimmigrant admission if you are already working for the U.S. petitioning employer. Alternatively, if the person is already in the U.S. on a temporary visa, it is possible to qualify based on having been employed as an executive or manager at that company for one of the three years before arrival in the United States. (The prerequisites are similar to those for L-1 intra-company transferee nonimmigrant visas.)
Your petitioning employer must be a U.S. employer and intend to employ you in a managerial or executive capacity. The petitioner must have been doing business in the U.S. for at least one year as a legal entity with a qualifying relationship to the entity that employed you abroad in a managerial or executive capacity. No labor certification is required.
Not only does the foreign national need to meet the various qualification requirements under this subcategory, but the employer, including its foreign and U.S.-based offices, must also meet specific qualifications, including that the two are either:
different branches of the same company
a joint venture where the parent company owns half or has equal control and veto power
related so that one company is a majority-controlled subsidiary of the other, or
affiliated such that both companies are under the control of the same person, persons, company, or group of companies.
Care must also be taken to ensure that the job position, both inside and outside of the U.S., is demonstrably “executive” or “managerial.” A manager, under the immigration laws, is said to be a person who:
manages the organization, or a department, subdivision, function, or component thereof
supervises and controls the work of other employees in supervisory, professional, or managerial positions, or manages an essential function of the organization
is authorized to hire and fire the persons supervised, or if none are supervised, works at a senior level within the organization, and
is authorized to make decisions concerning day-to-day operations of the organization’s activities or functions over which the manager has authority.
All four of the above criteria must be met for the foreign national’s job to be considered managerial. A supervisor below the middle management level, often called the first-line supervisor, is not usually a manager for EB-1 qualifying purposes. However, an exception may be made if the employees being supervised are themselves, professionals, with university degrees.
The immigration law’s definition of an executive is someone who:
directs the management of the organization or a significant part or function of the organization
sets the goals and policies of the organization or a part or function of the organization
has been given extensive decision-making authority, and
is subject to only general supervision or direction from higher-level executives, a board of directors, or the organization’s stockholders.
Extraordinary Ability: You may apply for yourself (with the help of an Attorney) by filing a Form I-140, Petition for Alien Worker.
Outstanding Professors and Researchers: Your U.S. employer must file a Form I-140, Petition for Alien Worker. As part of the application process, your employer must demonstrate a continuing ability to pay the offered wage as of the priority date. Your employer may use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay your wage.
Multinational Manager or Executive: Your U.S. employer must file USCIS Form I-140, Petition for Alien Worker. As part of the application process, your employer must demonstrate a continuing ability to pay the offered wage as of the priority date. Your employer may use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay your wage.
If your I-140 petition is approved, your spouse and unmarried children under the age of 21 may be eligible for admission to the United States in E-14 or E-15 immigrant status, respectively.
This is simply a summary of the law, and it is not always easy to tell what type of job offers, or individual applicants, will successfully qualify in the EB-1 category. For more information, please contact us.
The E-2 visa allows business people from certain countries (Bangladesh is one of those) to work in the U.S. for a business in which they invest. However, please do not confuse E-2 treaty investor visas with green cards through investment (EB-5). While EB-5 requires an I million dollar investment or more, an E-2 visa has no dollar minimum set in law.
Let us review some of the pluses, minuses, and issues surrounding the E-2 visa:
The treaty investor and individual employees can work legally in the U.S. for a U.S. business in which a substantial cash investment has been made by the investor, so long as the country of which the investor is a national has a treaty with the U.S.
While in the U.S., the treaty investor or employee is restricted to working only for the employer or self-owned business that acted as the E-2 visa sponsor.
Initial visas may last for up to five years (depending on your country of origin), with unlimited extensions. The length of the visa depends upon the visa “reciprocity” agreement between the U.S. and the foreign country and upon the viability of the business. (New companies receive shorter validity periods.)
Each time E visa holders (workers or family members) enter the U.S., they receive a period of stay of up to two years. They also may extend their stay while remaining in the U.S.
Visas are available for an accompanying spouse and minor, unmarried children.
The spouse, but not children, may apply for a work permit once physically present in the U.S.
Some people call the E-2 the next best thing to U.S. permanent residence, because it is possible to obtain via self-employment, and it comes with an unlimited number of extensions. Also, there are no annual limits on the number of E-2 visas that can be issued to qualified applicants.
There are six requirements for getting an E-2 visa:
The applicant must be a citizen of a country that has a relevant treaty with the United States.
The applicant must be coming to work in the U.S. for a company that he or she either owns or at a minimum of 50% owned by other nationals of the country of origin.
The applicant must be either the owner or a key employee (executive or supervisor, or someone with essential skills) of the U.S. business.
The applicant or the company must have made a substantial investment in the U.S. business. (There is no legal minimum, but the applicant or company must be putting capital or assets at risk, be trying to make a profit, and the amount must be substantial relative to the type of business.)
The U.S. company must be actively engaged in commercial activities and meet the applicable legal requirements for doing business in its state or region. It also cannot be merely a means to support the investor. The underlying goal of the treaty investor visa is to create jobs for U.S. workers.
The applicant must intend to leave the U.S. when his or her business in the U.S. is completed, although the person is not required to maintain a foreign residence abroad. The applicant will likely be asked to show the U.S. consulate evidence of eventual plans to leave the United States.
The application process is entirely different when seeking a new status for a prospective E-2 worker in the U.S. rather than applying for an entry visa.
Under the E-2 “treaty investor” nonimmigrant visa category, a U.S. business established by substantial investment and at least 50% owned by citizens of a country with an authorizing treaty with the U.S. can temporarily hire workers from that same country to perform executive, supervisory, and essential-skills jobs. The principal investor in such a business can also use this visa category to secure temporary U.S. status. A principal investor who is in the U.S. must be in E-2 status in order to employ E-2 workers. Once an employer determines that the business and prospective employee can meet the E-2 eligibility requirements, it needs to figure out where and how to apply.
An employer can file a petition with U.S. Citizenship and Immigration Services (USCIS) to change the status and extend the stay of a prospective employee in the U.S. in another nonimmigrant status.
The form used for this is USCIS’s Petition for a Nonimmigrant Worker, Form I-129. It consists of several pages requesting information required for all types of nonimmigrant worker petitions, followed by several sets of additional pages for the specific visa categories. The E supplement, consisting of two pages immediately following the general section, requires the employer to set forth the E-2 qualifying characteristics of the business and prospective employee.
USCIS publishes instructions for Form I-129, but since it is used for all types of nonimmigrant worker petitions, the instructions for anyone type can be sketchy. As outlined there, these are the kinds of documents an employer can submit to establish that the business meets the E-2 requirements:
Evidence of possession and control of investment funds: bank records, financial statements, loans, savings, promissory notes.
Evidence of remittance of funds to the U.S.: bank drafts, transfers, exchange permits, receipts.
There is evidence of business establishment in the U.S.: articles of incorporation, partnership agreements, organization and staffing charts, shares, titles, contracts, receipts licenses, leases.
Evidence of investors’ nationality: passports, articles of incorporation of the parent company, stock exchange listings.
Evidence of investment in the U.S.: titles, receipts, contracts, loans, bank statements.
Evidence of the substantiality of the investment: financial statements, audits, corporate tax returns.
Evidence that the enterprise is not marginal: payroll records, payroll tax forms, personal tax returns, or other evidence of personal income and assets.
Evidence that the enterprise is a real, operating business: annual reports, catalogs, sales literature, news articles.
Of course, form instructions can provide only general guidance. No list of supporting documents could cover all types of E-2 eligible businesses. What documents a business presents depends on its nature. For instance, a publicly-traded corporation might show the requisite foreign ownership through a stock exchange listing, while a closely held corporation will typically present copies of stock certificates and owners’ passport identification pages.
To establish that the business is not marginal, a sole proprietor might present personal income tax returns, proving that it generates more than enough income to sustain the investor’s family. At the same time, a larger company would submit evidence such as payroll records to prove it generates economic activity by employing people.
In addition to the documents qualifying a business, it will need to submit evidence that the prospective employee meets the E-2 requirements and is eligible to change status:
Evidence of nationality: Passport identification pages
Evidence of current nonimmigrant status: I-94 card (for a description of the I-94 card, see discussion below about maintaining status)
Evidence of qualifications: Resume, diplomas, certificates, as relevant
The E-2 petition packet needs a good cover letter to assist the USCIS adjudicator in making sense of the documents and how they satisfy the E-2 requirements.
The USCIS petition fee is $460. It is ordinarily paid by a check or money order made out to the U.S. Department of Homeland Security and submitted along with the petition. (A credit card can be used only when submitting to a USCIS lockbox, but the I-129 goes to a regular USCIS service center.)
USCIS typically grants E-2 status for an initial term of two years. If the prospective E-2 hire contemplates travel outside the U.S. during the first two years of employment, consular processing might make the most sense, even when a USCIS petition is possible.
This is because the employee will need to get a visa at a consular post to re-enter the U.S., and, unlike other types of nonimmigrant petitions, the E-2 petition has no force at all at a consular post. Whereas, say, an H-1B employee needs only present an approved unexpired USCIS petition at a consulate abroad to support the basic visa application form, an E-2 employee will need to make a completely new visa application with all the required supporting documents: So why not just go for a visa from the outset?
Upon approving an E-2 petition, USCIS issues an approval notice to the employer that includes a status document. The notice is perforated so that one can tear off the bottom portion, the I-94 card, and give it to the employee to serve as evidence of status. The employer and employee must track the expiration date on the I-94. Typically, E-2 status is granted for an initial two-year term.
Before the I-94 expires, the employer can extend your employee’s status by filing a second petition with USCIS. Theoretically, E-2 status can be extended indefinitely by the filing of a petition every two years. However, USCIS does require persuading each time anew, and employers are frequently asked to present some evidence that U.S. workers are not available for the job in question.
An employee who has processed abroad for an E-2 visa will usually be admitted with two years of stay on entering the United States. Since the visa itself is typically issued for a five-year term, the visa-holding employee will have an alternative to a USCIS petition for extending status, namely traveling and re-entering.
With each reentry during the life of the visa, the immigration officer at the point of entry should grant a new two-year period of stay. Thus, through strategic traveling, an E-2 visa holder could parlay a five-year visa into a seven-year stay without reestablishing the E-2 qualifications.
The H-2A program enables US employers or US agents who meet certain regulatory requirements to bring foreign nationals to the US to fill temporary agricultural jobs. A U.S. employer, a U.S. agent as described in the regulations, or an association of U.S. agricultural producers named as a joint employer must file Form I-129, Petition for a Nonimmigrant Worker, on a prospective worker’s behalf.
Those who plan to work in temporary or seasonal agricultural jobs are eligible for the H-2A visa. Seasonal here refers to the fact that the work falls inside a predetermined time frame or occasion. Temporary here refers to projects that are finished in less than a year.
To be eligible for H-2A nonimmigrant status, the petitioner must meet the following requirements:
Provide a job that is temporary or seasonal.
Demonstrate that there aren’t enough American workers who are able, willing, qualified, and available to do the temporary work.
Exemplify that hiring H-2A workers will not have a negative impact on the wages and working conditions of similarly employed US workers.
In general, with the H-2A petition, include a single valid temporary labor certification from the US Department of Labor. (In certain “emergent circumstances,” there is a limited exception to this requirement.) For more information, see 8 CFR 214.2(h)(5)(x).)
Step 1 of the H-2A Program’s Application Process: The petitioner must apply for and obtain a temporary labor certification for H-2A workers from DOL prior to asking USCIS for H-2A classification.
The petitioner sends USCIS Form I-129. The petitioner must submit Form I-129 to USCIS after getting a temporary labor certification from DOL for H-2A employment. With a few exceptions, the petitioner must include an original temporary labor certification with Form I-129 as the first piece of proof.
Prospective employees from abroad apply for a visa and/or admittance. Prospective H-2A workers outside of the United States must, after USCIS approves Form I-129, do one of the following:
Apply for an H-2A visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad, and then apply for admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
Directly apply for admission to the United States in H-2A classification with C
Due to seasonality, processing timelines for H-2A visas can fluctuate and can take longer. It is advised that US companies submit petitions to USCIS at least 60 days, but no later than 120 days, before they require the foreign workers.
Agricultural H-2A visas are transitory and only good for one year. The employee must therefore go back to their place of origin after a year. The H-2A visa can, however, be extended if they haven’t finished the job and the firm still needs them or if they find another employer. A person with an H-2A visa may stay in the US for a maximum of three years. Extensions are made in one-year increments.
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