Employment Based Immigration – EB1, EB2, EB3, and I-140 Petition

EB1, EB2, EB3, and I-140 Petition

There are two avenues for foreigners to immigrate to the US and obtain permanent residency through work. The first is through employment-based visas – EB1, EB2, and EB3. The second is through relatives who already have employment-based immigrant visas, i.e., green cards. Every year, around 140,000 green cards are made available by the United States Citizenship and Immigration Services (USCIS). This visa category has three main categories – EB1 vs EB2 vs EB3.

List of Persons Who May Qualify for EB1 Category

How to have EB1 visa? The EB1 category has three subcategories –

  • Individuals of Extraordinary Ability: Individuals with extraordinary abilities can apply for this first-preference visa. This EB1 category is designed to attract noncitizens with international acclaim in specific fields. Thousands of experts in business, science, arts, athletics, and other fields earn their EB1-1 visas under this category. They have to show documentation detailing their achievements, acclaims, and recognitions earned in their specific field of expertise. Individuals with extraordinary abilities don’t need to have job offers from US companies to file petitions with the USCIS. But, they must continue working in whatever fields they have extraordinary abilities in the US and promote US interests.
  • Outstanding Professor/Researcher: Also known as EB1-2 visa, applicants under this category must have 3+ years of experience in teaching or researching. Academics, professors, and teachers with international recognition apply for EB1-2 visas. They don’t need labor or “PERM” certification. But, they must have official job offers from US employers. They also need to sign I-140 immigrant petitions with the USCIS.
  • Multinational Executives and Managers: This third sub-category of the EB-1 category is designed for professionals experienced in executive or managerial roles. It’s for professionals who have been employed for at least 3 years in executive/managerial capacities by multinational corporations. Labor certification isn’t required to earn the EB1-3 visa. But, applicants must have verified job offers from US companies. They must also file I-140 immigrant petitions with the USCIS.

EB2 Category

People applying for visas under the EB2 category must get their PERM certifications approved by the US Department of Labor. Verified job offers from US-based companies are also required. The US employers in question must also file petitions on behalf of the green card applicants. There are two sub-categories within the EB2 category:

  • Experienced Professionals: Applicants with advanced degrees (beyond bachelor’s degrees) and 5+ years of experience in their respective professions.
  • Individuals with Exceptional Abilities: People who have “exceptional abilities” in certain fields (business, arts, sciences, etc.) can apply for visas under this EB2 sub-category.

All visa applicants under the EB2 category need to have job offers from US-based companies. They also need to complete PERM or labor certification processes. Exceptions to these rules can only be made for applicants who can advance ” US national interests.” Such applicants need to file National Interest Waivers (NIWs) to qualify for EB2 Visas. More on NIWs later.

EB3 Category

All visa applicants under the EB3 category must be fully sponsored by their prospective employers. There are three sub-categories in the EB3 Category

  • Professionals with baccalaureate or bachelor’s degrees.
  • Skilled workers with at least 2+ years of experience & training.
  • Unskilled workers with less than 2 years of experience & training.

I-140 Immigrant Petition

Visa applicants under EB2 or EB3 categories need their PERM applications to be certified by the DOL. Within 180 days of PERM certification, applicants must also file I-140 immigrant petition forms with the USCIS. Obtaining I-140 immigration approval doesn’t automatically change the applicant’s non-immigrant status. It merely asks the USCIS for clarification regarding which employment-based classification the applicant falls under – EB3 to EB2 to EB1. Here’s a simple explanation.

  • Let’s say the sponsoring employer (a US-based company) isn’t currently employing the applicant i.e., the sponsored employee. That’s the case for most H1B or L1 visa applicants.
  • To keep living legally in the US, the applicant must still continue to maintain his/her valid non-immigrant visa status.
  • Even after I-140 approval, they must maintain this status. They can change this status by filing an “I-485 Adjustment of Status” application.

Labor or PERM certifications must be filed with I-140 immigrant petition forms with the USCIS. One EB2 employee one PERM – apart from exceptions, that’s their main policy. Here are some situations where filing Labor Certifications is not mandatory –

  • When the applicant promises to serve US “National Interests”
  • When the applicant (under the EB2 category) is an individual with exceptional abilities.
  • When the applicant (under the EB1 category) is an Individual of Extraordinary Ability.
  • When the applicant is an outstanding professor, researcher, or executive-level professional.

Apart from these exceptions, all I-140 immigration petitions require job offers. Sponsoring employers must sign the I-140 petition forms with proof demonstrating that they can pay extended wages to the employees. To do so, employers have to submit their companies’ financial statements, annual reports, federal tax returns, etc., to the DOL.

If the employers in question have large workforces (100 or more workers) their CFOs must provide official statements. These statements must verify the employer’s ability to pay the required wages.

The DOL also accepts alternate forms of evidence like P&L statements, bank account records, etc. Can employers of companies that record net losses every year earn approvals from the USCIS and the DOL? Yes. If their net profits are somewhat equivalent to their offered salaries, their I-140 immigration petitions will earn approval.

The USCIS routinely approves such petitions and applicants. The USCIS also makes many assumptions that are pro-immigration in nature. Let’s say a sponsored employee currently earns a salary that’s somewhat close to the figure offered in the I-140 petition.

In this case, the USCIS will assume that the employer can pay similar salaries in the future as well. Even if the employer’s latest profit figures are much less than their offered salary – the USCIS will approve their applications.

I-140 Denials

I-140 denials usually happen when sponsored employees fail to meet the minimum qualifications for their preferred jobs. The USCIS denies these I-140 petitions on the basis of the employee’s inability to perform their duties.

For instance, let’s say an employment opportunity requires the candidate to have a bachelor’s degree and 3+ years of work experience. The candidate must have these qualifications before getting employment from the sponsoring employer.

If the applicant lacks the education and work experience – he/she wouldn’t be deemed fit for a green card I 140 as per the USCIS standards. The USCIS is also strict about foreign educational degrees that are equivalent to US degrees.

An applicant’s foreign degree can only be equated with US degrees. The applicant can’t combine his/her work experience with education. Work experience or other skills don’t equate to academic degrees in the US. Similarly, a 3-year foreign degree won’t be deemed to be similar to a 4-year U.S. bachelor’s degree.

Application processes for all EB category green cards are strict in this aspect. So, the best scenario is when the sponsored employee exceeds the minimum qualifications for the employment opportunity in question.

If your work/educational records are better than all other qualified applicants, you earn your green card i140 fair & square. Job opportunities shouldn’t be specially created to supply green cards t sponsored employees That’s immigration fraud and it’s not welcomed by the USCIS.

That’s why job openings for sponsored employees must always be advertised to local candidates first. If the job position passes the DOL’s PERM certification test – no delays are caused. But, if the DOL suspects something fishy, they may delay the application.

For instance, if the candidate’s CV exactly matches the requirements of the offered job, the DOL may suspect the applicant. The DOL or the USCIS may determine that the position wasn’t made fairly available to US workers. Also, the sponsored employee’s qualifications must dictate his/her job position.

For example, let’s say you’re applying for the position of store manager. This job shouldn’t be classified by the sponsoring employer as “EB2.” It doesn’t matter if you hold a master’s degree – store manager or clerk is an EB3 category job. Failing to meet these standards could result in green card I 140 denials.

The Last Step in the Green Card Process

The last step in the green card (permanent residency) process is submitting an “adjustment of status application” to the USCIS. Can applicants stay in the US while waiting for their adjustment of status (AOS)? Yes. They can stay in the US while their applications are being processed – even if their visas expire.

Here are the USCIS policies on how visa applicants are subject to immigrant visas while they’re waiting to fill their AOS applications. Applicants also need to obtain travel permissions if they wish to travel while their AOS applications are pending. Applicants do get the right to receive employment certifications.

They can advance their employment goals while their AOS applications are processed. The Employment Authorization Document (EAD) always allows foreign workers to seek employment – regardless of their current non-immigrant status. For instance, H1B or L1 Visa EB2 visa categories are employer-specific.

If the employers file appropriate petition EB2 or i-140 immigrant petitions, applicants with non-immigrant status can find work. Foreign nationals not currently in the US can have their immigrant visas processed at consular “Visa Processing” posts in their respective home countries.

Individuals who violate their status while in the US also have to go through this process. They’re asked by the USCIS to return to their home countries for consular visa processing. That’s why applicants based in the US prefer the less complex AOS procedure over Visa Processing.

They get to cut costs by avoiding long trips back to their home countries. Foreign nationals also get the right to appeal against green card I 140 denials. If they’re back in their home countries, going through Visa Processing, they can’t do that.

Why Applicants and Employers Need Legal Assistance

Understanding the differences between EB3 vs H1B or green card EB1 vs EB2 is not easy. Tasks like EB2 to EB1 porting or going through i140 materials aren’t easy either. That’s why employers and applicants both need expert legal assistance.

At Zavala Texas Law, they get the best legal counsel on all types of immigration procedures and functions. Self-petitioning in the EB1, EB2, or EB3 category is very complicated – with or without EB1 NIW (National Interest Waivers). For expert assistance, contact Zavala Texas Law now.

National Interest Waivers (NIW)

Applicants for employment-based visas can also file EB1 NIW (National Interest Waivers) with the USCIS. The main advantage of filing NIWs is that applicants are exempted from the DOL’s PERM labor certification process.

Applicants with EB1 NIWs also don’t need official job offers from US-based companies to immigrate. They can file immigration petitions on their own, without going through the various checkpoints and barriers.

Only people who qualify as “individuals with exceptional abilities” or “advanced degree professionals” can file NIWs. These “self-petitions” must be filed along with at least three of the following documents –

  • Evidence of affiliation with professional associations
  • Evidence of acknowledgment and acclaim for achievements and contributions to their respective industry. These acclaims should come from business organizations, government bodies, or accredited professionals.
  • Official academic records verifying the foreign national’s exceptional abilities. They can include – degrees, diplomas, certifications, and awards from reputable institutions (e.g., colleges, universities, and schools).
  • Evidence of ten years (or more) of full-time experience in a specific industry or occupation. This evidence can be presented in the form of recommendation letters from current or past employers.
  • Certified license to practice whatever profession or occupation the candidate has exceptional abilities in.
  • Proof that the foreign national has earned remuneration for their exceptional abilities and services.

Meeting these standards is vital for all NIW applicants. If anyone can’t meet these specific standards, they must provide comparable evidence to establish eligibility. The main aim of EB1 or NIW applicants is the same – to prove that their work benefits US national interests.

USCIS’ Administrative Appeals Unit considers the following factors while determining whether an applicant can advance US national interests –

  • Does their work directly improve the US economy?
  • Does their work improve average wages or working conditions of US workers in a specific field or industry?
  • Will the applicant improve education/training standards for US workers?
  • Can the applicant’s exceptional abilities improve healthcare standards in the US?
  • Will the applicant’s work result in benefits like affordable housing for US citizens or environmental improvements?
  • Has any accredited US Government Agency requested on behalf of the NIQ applicant?

To address these questions, applicants must provide at least three of the following records or documents –

  • Proof of winning major, internationally-recognized awards.
  • Receipts of nationally recognized prizes.
  • Awards for excellence in a specific field of endeavor.
  • Proof of membership in associations that only accept outstanding individuals. For instance, members of the MENSA society are recognized by both national and international experts.
  • Proof that the applicant has published original materials in academic, professional, or trade publications.
  • Proof of participation on panels as a judge or industry expert.
  • Proof of original contributions of significance in a specific field – be it scientific, artistic, athletic, business-related, or scholarly.
  • Authorship of multiple scholarly articles in their respective field.
  • Proof of commercial successes in commercial arts (e.g., box office receipts).
  • Proof that the applicant has commanded high salaries for their services.

To learn whether you’re eligible for an EB1 NIW application, contact Zavala Texas Law now!

Based in Houston, Charles Zavala is a dedicated immigration and criminal defense attorney with over 10 years of experience. His bilingual firm serves clients across Texas and the USA, providing personalized legal services and convenient phone consultations. With a 4.9/5 star Google rating, Zavala Texas Law is known for exceptional client service. Contact Charles Zavala for trusted legal assistance.

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