Employment visas are a popular route for American companies to bring in talented and experienced employees from other countries. In this blog, I will discuss the EB-1, EB-2 and EB-3 visas in terms of how a person qualifies for each visa, as well as the process of obtaining each visa. In each of these categories, successful applicants can also petition for their spouse and unmarried children under the age of 21 to receive visas as well.
According to the United States Citizenship and Immigration Service, the EB-1 visa is reserved for candidates who possess “extraordinary ability in the sciences, arts, education, business or athletics.” EB-1 candidates who qualify under this previous statement do not require a job offer from an American company in order to be eligible for a visa, but they must enter the country with the intention of continuing the work that earned them international acclaim.
Two other groups besides the aforementioned candidates are potentially capable of earning an EB-1 visa: academics and business executives. For the former applicants, they must hold international recognition; also, they must be entering the United States for the purpose of pursuing tenure or an existing job opportunity. For the latter group, they must have a minimum of three years of experience at an overseas branch of an American company; furthermore, they must be entering the country with an offer for a similar position.
In order to gain the visa, the candidate and the employer must gain their labor certification from the Department of Labor. Next, either the employer or the candidate must file form I-140 — “Immigrant Petition for Alien Worker”— with the United States Customs and Immigration Service.
Along with the EB-1, this visa is a useful avenue for skilled workers from overseas to gain legal access to the United States. 28.6 percent of global employment-based immigrant visas come in the form of the EB-2. Candidates who are eligible for this visa must be professionals who hold an advanced degree in their fields and have either demonstrated exceptional ability or accrued five or more years of experience in their area of expertise.
Having an existing job offer from an American company is a prerequisite for the EB-2 visa; however, candidates can also gain certification from the Department of Labor by filing a “National Interest Waiver.” This form can nullify the job offer requirement if the Department of Labor considers the candidate's entry good for the national interest, regardless of a job offer. As was the case with the EB-1, candidates for the EB-2 who have been approved by the Department of Labor must have their form I-140 filed by their prospective employer.
While all “EB” visas are designed to facilitate skilled workers entering the United States, the EB-3 visa has less stringent requirements than the previous two. Just like the EB-2 visa, 28.6 percent of all worldwide employment-based immigrant visas are distributed in the form of the EB-3; also, candidates must have an existing job offer in the United States and must be certified by the Department of Labor before filing form I-140.
On the other hand, EB-3 visas differ from the previous examples because a wider variety of workers are eligible to access this visa. Skilled workers can qualify for the EB-3 through two years of experience, while professionals who hold a Bachelor's Degree or former equivalent can be eligible. Even unskilled workers are capable of earning this visa, provided that their work is not temporary or seasonal.
In terms of annual distribution, visas from each category are issued in the chronological order that each petition was filed. Since each category holds numerical limits for the number of visas that can be issued annually, waiting lists for eligible candidates often form that can last up to several years.
This blog represents only a cursory description of the process entailed to earn an EB-1, EB-2 or EB-3 visa. The United States Bureau of Consular Affairs has put together an overview of the employment-based visa program that provides more detail and answers frequently asked questions. Ultimately, no form of independent research can adequately replace the guidance of an experienced lawyer. Call Castel & Hall, L.L.P. at 617-716-6464 to receive an informed consultation from an experienced immigration lawyer.
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