EB visas: Qualifying for permanent residence in employment-based preference categories

An overview of the five preference categories of employment-based permanent residence petitions or “EB” immigrant visas

There are several ways for foreign workers to enter the U.S. on a temporary or a permanent basis. This article provides an overview of the five preference categories of employment-based permanent residence petitions or “EB” immigrant visas, which allow foreign nationals to work and to live lawfully and permanently in the U.S. indefinitely. Employment based immigration is subject to a per-country limit and, overall, favors applicants with more sophisticated training, experience and skills.

EB-1 preference: Priority workers

The EB-1 preference category covers “priority workers,” including foreign nationals with “extraordinary ability” in the sciences, arts, education, business or athletics as demonstrated by sustained national or international acclaim; professors and researchers who are “outstanding;” and certain executives and managers (who do not need to demonstrate any particular level of fame or success). Each category has certain requirements that must be met:

EB-1(a): Persons of “extraordinary” ability in the sciences, arts, education, business, or athletics

To qualify as “extraordinary,” applicants must submit documentation showing sustained national or international acclaim and recognition in their field of expertise. Those with “extraordinary ability” have a level of expertise indicating that they are one of a small percentage who has risen to the very top of their field. A specific job offer is not necessary as long as the applicant is entering the U.S. to continue to work in the field in which he or she is recognized to have extraordinary ability. Applicants in this preference category may submit their own petitions by filing a Form I-140. A labor certification is not required.

EB-1(b): Outstanding professors and researchers

To qualify as an “outstanding” professor or researcher, applicants must have at least three years of experience in teaching or research and must be recognized internationally for outstanding achievement in a particular academic field. No labor certification is required, but the prospective employer must provide a job offer, serve as the petitioner and file the Form I-140.

EB-1(c): Certain executives and managers subject to an international transfer to the U.S.

To qualify in this category, applicants must have been employed outside the U.S. for at least one year of the preceding year years by the overseas affiliate, parent, subsidiary or branch of a U.S. employer in a managerial or executive capacity. The applicant must be seeking to enter the U.S. to continue his or her service to that firm or organization in a managerial or executive capacity. No labor certification is required, but the prospective employer must provide a job offer, serve as the petitioner and file the Form I-140.

EB-2 preference: Professionals with advanced degrees or exceptional ability

The EB-2 preference category covers “members of the professions holding advanced degrees or their equivalent” and immigrants with “exceptional ability in the sciences, arts, or business.” “Exceptional ability,” as distinguished from the first preference’s use of “extraordinary,” means having a degree of expertise significantly above that ordinarily encountered within the field. Moreover, unlike the first preference, the second preference does not expressly include ability in the fields of education or athletics.

The EB-2 preference differs from the EB-1(a) preference category in another important respect: It generally requires the applicant to demonstrate a job offer from a U.S. employer and to obtain a labor certification (which generally requires a showing that able, willing, and qualified U.S. workers are not available and that the applicant’s employment will not adversely affect the wages and working conditions of similarly employed U.S. workers). In addition to providing a job offer, the prospective employer must serve as the petitioner and file the Form I-140.   

It is within the USCIS’s discretion to waive the job offer requirement through a “national interest waiver.” Jobs that qualify for a national interest waiver are not defined by statute, but are usually granted to those applications who have “exceptional ability” and whose employment in the U.S. would greatly benefit the nation. Applicants who seek a national interest waiver may file a self-petition (and do not need an employer to sponsor them) and file their labor certification directly with the USCIS along with their Form I-140.

EB-3 preference: Skilled workers, professionals and unskilled workers

The EB-3 preference category covers “skilled workers” capable of performing jobs for which qualified workers are not available in the U.S., “professionals holding baccalaureate degrees” for which qualified workers are not available in the U.S., and “other workers” who are capable of performing unskilled labor for which qualified U.S. workers are not available. As with the second preference, a labor certified is required. However, unlike the second preference, there is no provision for national interest waivers.

The prospective employer must provide a permanent, full-time job offer, serve as the petitioner, and file the Form I-140. As part of the application process, the prospective employer must be able to demonstrate an ability to pay the offered wage as of the prospective employee’s visa priority date.

EB-4 preference: Certain special immigrants

The EB-4 preference category is reserved for certain “special immigrants,” including religious workers, broadcasters, Iraqi/Afghan translators, Iraqis who have assisted the U.S., international organization employees, physicians, armed forces members, Panama Canal Zone employees, retired NATO-6 employees, and spouses and children of deceased NATO-6 employees. The EB-4 preference is not intended to redress labor shortages but rather to serve a variety of other miscellaneous functions, mostly concerned with the special circumstances of the people who fall into this preference category.  

Generally, the prospective employer must file a Form I-360 petition. There are, however, certain situations in which the prospective employee may self-petition.   

EB-5 preference: Immigrant investors

The EB-5 preference category is intended for immigrants who invest money in the U.S. In 1990, Congress created the Immigrant Investor Program to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot immigration program first enacted in 1992 and regularly reauthorized thereafter, certain EB-5 visas are also set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth. To obtain an EB-5 visa, an applicant must file a Form I-526, invest or be in the process of investing $1,000,000 (or at least $500,000 in a “targeted employment area,” which is a high unemployment or rural area) and create or preserve at least 10 jobs for U.S. workers.

If the foreign national investor’s petition is approved, the investor and his or her dependents will be granted conditional permanent residence for two years. Within the 90-day period before the conditional permanent residence expires, the investor must file a Form I-829 and submit evidence documenting that the full required investment has been made and that the requisite number of jobs have been created or maintained. The petition to remove the conditions will be granted (and a full green card for indefinite permanent residence status will be granted) if the investor has fulfilled the EB-5 requirements in accordance with the business plan in the approved Form I-526 petition. 

Contributing Author

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Tina M. Maiolo

A member of Carr Maloney, P.C., Tina Maiolo partners with clients to operate and grow their businesses. She focuses her legal practice in...

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Contributing Author

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Suzanne E. Derr

Suzanne Derr of Carr Maloney focuses her practice on civil litigation, including matters of products liability, professional liability, and premises liability.

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