The difference between Immigrant and Non-Immigrant Employment Based Visas 

Many people start their process of immigration to the U.S. by getting a temporary visa (or non-immigrant visas) through employment. There are several paths to obtain a lawful permanent residence or a “Green Card” through employment-based immigrant visas. The most common employment-based non-immigrant visas, H and L, have a time limit of 6 or 7 years and if you are not a resident by that time, you need to leave. You can apply to re-enter, but you will need to be outside the country for at least a year before obtaining another similar visa. The H, L, and other non-immigrant visas do not lead to lawful permanent residency; that requires a separate immigrant visa petition, which can be through employment, family, or other special categories such as Asylum and the Diversity Visa Lottery. 

When should one begin the Immigrant Visa process? 

We strongly urge clients who wish to remain in the U.S., to start working on their immigrant visa process several years before their temporary nonimmigrant visa expires, as these processes can take over two years to provide work authorization (only applicable if apply for adjustment of status) and get approved. It is always preferable to maintain your nonimmigrant status throughout the process of applying for your “green card,” but the benefits and risks vary as they are very case specific. We recommend you discuss timelines, employment authorization, travel limitations, and risks of denial with your legal counsel at the beginning of the process.  

 What are my options for Immigrant status through employment?  

 With respect to the Employment Based Petitions there are five (5) preference categories, and below we summarize the most common: 

 EB-1 Extraordinary Ability Immigrant Visa  

 This visa category is for those individuals that can demonstrate sustained national or international acclaim and that their achievements have been recognized in their field of expertise. This petition may be filed without an employer/sponsor, and requires evidence of a one-time major achievement or evidence of at least three of the following ten criteria: 

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence 
  • Evidence of your membership in associations in the field which demand outstanding achievement of their members 
  • Evidence of published material about you in professional or major trade publications or other major media 
  • Evidence that you have been asked to judge the work of others, either individually or on a panel 
  • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field 
  • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media 
  • Evidence that your work has been displayed at artistic exhibitions or showcases 
  • Evidence of your performance of a leading or critical role in distinguished organizations 
  • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field 
  • Evidence of your commercial successes in the performing arts 

You may read more about the process on U.S. Citizenship and Immigration Services website here: https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1 

 EB-1 Multinational Executive or Manager Immigrant Visa 

 This category of petition is for managerial or executive employees of multinational organizations, who have been employed at the foreign branch outside the United States for at least one (1) year in the three (3) years preceding the petition or the most recent lawful nonimmigrant admission, if they are already working for the U.S. petitioning employer. The petitioning employer must be a U.S. employer and intend to employ beneficiary in a managerial or executive capacity.  

 You may read more about the process on U.S. Citizenship and Immigration Services website here: https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1 

 EB-2 Advanced Degree or Exceptional Ability National Interest Waiver Immigrant Visa 

This is a category that allows applicants to self-petition without a sponsor and waive the labor certification requirement. To qualify for an EB-2, you must possess an advanced degree (or its equivalent) or you must be able to show exceptional abilities in the sciences, arts, or business by meeting at least three (3) of the following criteria:  

 Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability 

  • Letters documenting at least 10 years of full-time experience in your occupation 
  • A license to practice your profession or certification for your profession or occupation 
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability 
  • Membership in a professional association(s) 
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations 
  • Other comparable evidence of eligibility is also acceptable. 

 In addition, to obtain a waiver of the labor certification requirement the applicant must establish that it is in the best interest of the U.S. to do so by meeting the following three (3) criteria: 

 The proposed endeavor has both substantial merit and national importance. 

  • You are well positioned to advance the proposed endeavor. 
  • It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification. 

 You may read more about the process on U.S. Citizenship and Immigration Services website here: https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2 

 EB-2 Advanced Degree or Exceptional Ability Immigrant Visa with Labor Certification and EB-3 Professional, Skilled Worker or Unskilled Worker Immigrant Visa with Labor Certification 

 EB-2 and EB-3 categories allow for workers of all education and skill level types to obtain lawful permanent residence to work for a specific U.S. Employer. The process requires a bona-fide job offer from a U.S. Company for which the beneficiary has the documented education, experience, and skill as required for the position. There are three steps to obtaining lawful permanent residence through this process: 

 Recruitment and Filing ETA9089 with Department of Labor 

 The petitioner U.S. Employer must place advertisements for the positions and consider every U.S. worker that applies for the job. The petitioning employer will also apply for a wage determination with the DOL that will set the minimum salary the employer must pay to the foreign worker for the position. Once the recruitment period is completed, and so long as there are no willing and qualified U.S. workers that present themselves during the recruitment period, the U.S. Employer may file the ETA9089 with the DOL and will wait months for approval of same. In the event the application is selected for random audit, you can anticipate an additional six (6) or more months for a final adjudication of the ETA9089. 

 Filing I-140 with USCIS 

 Once the ETA9089 is approved by the DOL, the petitioning employer may file a Form I-140 Petition with the approved Labor Certification, evidence that the employer is financially able to pay the wage set by the DOL, and evidence that the foreign worker meets the minimum requirements for the position. A Premium Processing fee may be paid to USCIS to expedite adjudication within fifteen (15) days.  

 Immigrant Visa Processing at U.S. Consulate Abroad or Adjustment of Status 

 So long as the visa category is available, the beneficiary of the ETA9089 and I-140 who is physically in the U.S. may file an application for Adjustment of Status (Form I-485), so long as the meet all the conditions of eligibility for this type of processing which typically requires: the applicant must (1) be present in the US after a lawful entry with inspection, (2) have a valid I-94 at the time of filing the adjustment, (3) have maintained lawful status since last entry, and (4) never have worked without authorization (this includes self-employment). While the adjustment of status is pending USCIS will issue a work authorization and travel documents to the beneficiary.  

 If the applicant does not meet all the conditions of Adjustment of Status, they may still apply for the Immigrant Visa at their home country consulate abroad. This process involves filing a DS-260 and documents with National Visa Center, followed by an interview at the Consulate. This process does not provide status or work authorization while it is pending.  

 It is important to consult with your attorney and the relevant agency websites regarding processing times to select the best path forward in your case. You may read more about the process on U.S. Citizenship and Immigration Services website here: https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-third-preference-eb-3 

 EB-5 Investor 

 USCIS administers the EB-5 Program. Under this program, investors (and their spouses and unmarried children under 21) are eligible to apply for a Green Card (permanent residence) if they: 

  • Make the necessary investment in a commercial enterprise in the United States (Minimum investment is $1,000,000 for direct investment and $500,000 for Targeted Employment Area (TEA) investment); and 
  • Plan to create or preserve ten permanent full-time jobs for qualified U.S. workers. 

The application process for an EB-5 Direct Investment is as follows: 

  1. File Form I-526, Immigrant Petition by Alien Investor. This application does not provide status or work authorization in the U.S. and as of 2022 published processing times also indicate three (3) to five (5) years for I-526 processing. 
  1. After USCIS approves Form I-526 petition, either: 
  • File Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS to adjust status to a conditional permanent resident within the United States. Once we approve your Form I-485 application or upon admission into the United States with an EB-5 immigrant visa, we will grant conditional permanent residence to the EB-5 investor and derivative family members for a two-year period. 
  1. File Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, within the 90-day period immediately before the second anniversary of your admission to the United States as a conditional permanent resident. If USCIS approves this petition, they will remove the conditions from your lawful permanent resident status and any dependents you included. 

As of December 30, 2021, Congress has not enacted new legislation authorizing the EB-5 program. You may read more about the process on U.S. Citizenship and Immigration Services website here: https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-investors