INVESTMENT IMMIGRATION/EMPLOYMENT-BASED IMMIGRATION
Multinational Executives and Managers (EB1C)
An alien can apply for permanent residence if the alien has worked at least one year by a legal entity outside the U.S. and seeks admission in order to work for the same employer (or its subsidiary or affiliate) in a managerial or executive capacity. The year of employment outside the U.S. must be within three years of the alien’s application.
There are five major points in this category:
- The Foreign employer company and the U.S. prospective employer company must have one of the following relationships: (a) same entity; (b) affiliate relationship; or (c) subsidiary. Affiliate means both foreign company and U.S. company are owned and controlled by the same parent or individual. Subsidiary means the foreign company, directly or indirectly, owns and controls more than half of the U.S. company.
- The alien has worked the for foreign company at least one year before applying for admission into the U.S.;
- Foreign company is still operating abroad;
- The prospective U.S. Company has been doing business for at least one year; and
- The alien will take a managerial or executive position with the U.S. company. Executive position means the alien will be responsible primarily for directing the management of the company or a component or a function of the company, establishing goals and policies, exercising wide latitude in discretionary decision making and receiving only general supervision or direction from higher level executives, board of directors or stockholders. Managerial position means the alien personally manages the organization, department, function, or component; supervises and controls the work of other supervisory, professional or managerial employees; has authority to hire and fire employees; or exercises discretion over day-to-day operations of the company.
INVESTMENT IMMIGRATION (EB5)
This investment can help an alien get permanent residence in the U.S. directly: first conditional permanent residence, then permanent residence after two years. To qualify as an EB5 investment, the alien must first establish a new commercial enterprise. The includes (1) creating an original business, (2) purchasing an existing business and then restructuring or reorganizing it either immediately or afterwards so that a new commercial enterprise results, or (3) expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business. Troubled business means that a business has lost 20 percent of its net worth over the past 12 to 24 months.
The alien needs to invest at least $1,000,000. But there are several exceptions which allow you to invest only $500,000: (1) Rural areas, defined as any area other than one within a metropolitan statistical area or within the boundary of a city or town with a population of 20,000 or more; or (2) areas having an unemployment rate that is at least 150% of the national average. The United States Citizenship and Immigration Services (USCIS) has designated certain areas throughout the United States as Regional Centers.
Then the alien needs to create full-time employment at least 10 qualified individuals (creating an employer-employee relationship). But, with troubled businesses (as described above), the alien needs to maintain the number of existing employees at no less than the pre-investment level for at least two years. With respect to a Regional Center, indirect employment creation can be included.
10,000 visas are available for this kind of visa of which 3,000 are reserved for investors in a targeted rural or high-unemployment area and 3,000 (minimum) set aside for investors in regional centers.
Once the alien meets the requirements, the alien will receive conditional permanent residence. The alien must file a petition to remove the conditional 90-day period before the second anniversary of the alien’s lawful admission as a permanent resident. USCIS will examine the business at the end of the two year period to determine whether or not the alien has complied with all of the requirements.
Many aliens obtain their permanent resident status from employment. There are two sub-categories:
- Employer-dependent route: including Outstanding researcher/professor, Multinational Executive/Manager, Permanent Labor Certification; and
- Employer-independent route: Extraordinary Ability and National Interest Waiver. An alien’s job change affects the first category but not the second category.
Extraordinary Ability, Outstanding researcher/professor, and Multinational Executive/Manager have much stricter requirements to meet but usually don’t have a long wait time to obtain permanent resident status. Conversely, Permanent Labor Certification has easier requirements but usually takes a long time for aliens to obtain permanent resident status.
If an alien has extraordinary ability in the sciences, arts, education, business, or athletics, he/she can apply for permanent residency. The extraordinary ability must have been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. This category is intended for the small percentage of individuals who have risen to the very top of their field of endeavor. A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.
Outstanding Professors and Researchers
An alien professor or researcher who is recognized internationally as outstanding in the academic field may apply for permanent residency. The petitioner also needs to meet much stricter requirements such as receiving a major prize or award for outstanding achievement in the academic field membership in associations within the academic field that require outstanding achievements of their members. The alien needs to have at least three years of experience in teaching or research in the academic field. The alien also needs to have an offer of employment from a prospective United States employer who is: (1) a United States university or institution of higher learning offering the alien a tenured or tenure-track teaching position in the alien’s academic field; (2) A United States university or institution of higher learning offering the alien a permanent research position in the alien’s academic field; or (c) a department, division, or institute of a private employer offering the alien a permanent research position in the alien’s academic field. The department, division, or institute must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in an academic field.
National Interest Waiver
Aliens who have advanced degrees or are of exceptional ability can seek an exemption from the requirement of a job offer or a labor certification. Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty is considered the equivalent of a masters degree. Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above the ordinarily encountered in the sciences, arts, or business. To prove national interest, the immigration office has adopted a precedent decision, Matter of New York State Dept. of Transportation, I&N Dec. (Comm. August 7, 1998), requiring three prongs of evaluation: (1) must show that the alien seeks employment in an area of substantial intrinsic merit; (2) must show that the proposed benefit will be national in scope; and (3) must demonstrate that the national interest would be adversely affected if a labor certification were required for the alien. The evidences submitted must (1) demonstrate specific prior achievements establishing beneficiary’s ability to justify projections of future benefit to the national interest; (2) show skills or background that are unique and innovative and that there would be a substantial disruption in the effort if this particular person was not available to perform the services; and (3) demonstrate how a qualified U.S. worker could not be able to play a similar role in the job to be performed by the beneficiary. The evidences must also show that the special skills, knowledge or abilities could not be articulated on a labor certification.
Permanent Labor Certification
The following aliens need to acquire permanent labor certification to get permanent residency:
- Aliens who have advanced degrees (or foreign equivalent) but do not qualify for the national interest waiver requirements;
- Aliens who have only baccalaureate degrees;
- Aliens who don’t have baccalaureate degrees but have at least 2 years training or work experience;
- Aliens who have less than two years of training or work experience.
This process requires the employer to apply for permanent labor certification for its alien employee. The job offered by the employer to the alien employee must be full time permanent employment and not self-employment. The employer must pay fees and costs in this labor certification process, including advertisement costs and attorney fees for preparing the labor certification process. The employer must also pay a prevailing wage to the alien worker.
The basic criteria for permanent labor certification are whether there are insufficient U.S. workers who are able, willing, qualified, and available, and whether the employment of the alien will have an adverse effect on the wages and working conditions of U.S. workers similarly employed. Most cases require the test of labor market through the PERM process except for certain categories of jobs that are designated by the Department of Labors Schedule A, pre-certified as ones not adversely affecting U.S. workers. These jobs include nurses, physical therapists and persons of exceptional ability in the sciences, arts and performing arts. Once Department of Labor approves a labor certification, the employer needs to file immigrant petition with Department of Homeland Security within 180 calendar days of the date when the labor certification was granted.