Employment-based Green Card

PRIORITY WORKERS (EB-1)

This preference is reserved for persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers.

An EB1 Green Card entitles accomplished foreigners to live permanently in the United States to continue to work in their field. In addition, the Green Card holder’s spouse and children may be entitled to accompany or join them in the United States permanently.

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PROFESSIONALS WITH ADVANCED DEGREES OR EXCEPTIONAL ABILITIES (EB-2)

This preference is reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.

To qualify for an EB2 Green Card, the applicant must have an advanced degree or exceptional ability in their profession. Applicants must have a permanent job offer from a US employer who will act as the applicant’s sponsor.

An advanced degree is considered at least a Master’s degree or, in some professions, a Bachelor’s degree plus a minimum of five (5) years’ work experience.

An exceptional ability means a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business. Applicants who can demonstrate an exceptional ability and that their employment in the US would greatly benefit the nation may be eligible to self-petition and may not need an employer to sponsor them.

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SKILLED WORKERS, PROFESSIONALS AND OTHER WORKERS (EB-3)

This preference is reserved for professionals, skilled workers, and other workers.

To qualify for an EB3 Green Card, the applicant must have a permanent, full time job offer from a US employer for which qualified workers are not available in the United States.

Professionals must possess a baccalaureate degree, or degree equivalent, that is required for entry into their occupation.

Skilled Workers must be able to demonstrate at least 2 years of job experience or training.

Other Workers must be undertaking unskilled labor that requires less than 2 years of training or experience.

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CERTAIN SPECIAL IMMIGRANTS (EB-4)

This preference is reserved for “special immigrants,” which includes certain religious workers, employees of U.S. foreign service posts, retired employees of international organizations, alien minors who are wards of courts in the United States, and other classes of aliens.

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EMPLOYMENT CREATION (EB-5)

The fifth employment-based preference sets aside 10,000 visas each year for immigrant investors whose new commercial enterprises will create a certain number of jobs in the United States. Of this, 3,000 visas are allotted to investors in targeted employment. Another 3,000 is set aside for investors in the Regional Center pilot program. There is no requirement for labor certification under this category.

The demand for EB-5 visas was low for the most part of the program’s history until recently when interest for a fast route to a green card grew especially after the latest visa retrogression in the employment-based preferences.

Regular Program

The basic or regular EB-5 program allows conditional residency to individuals investing $1,000,000 in a new or restructured commercial enterprise that employs at least ten U.S. workers. The capital requirement is lowered to $500,000 if the investment is in a targeted employment area which may either be a rural area with a population of less than 20,000 or an area with high unemployment of at least 150% the national average.

The investment must be “at risk” and actually committed. The investment may be in cash, cash equivalent, equipment, inventory, other tangible property and indebtedness secured by assets owned by the investor provided that he is directly and personally liable and the assets of the enterprise are not used to secure the debt. Furthermore, under the regular program, the investor must be engaged in the day-to-day management of the enterprise or in policy formulation and may not play a purely passive role toward his investment.

The investor is required to establish that the invested capital came from legitimate means. In order to qualify as an investment, the funds must be traced to a lawful source, such as gifts, inheritance or loans.

The enterprise must benefit the U.S. economy by creating direct employment for at least ten workers who are U.S. citizens, permanent residents or employment-authorized immigrants, excluding the family members of the investor. The employment created must be full-time or at least 35 hours per week and not intermittent, temporary, seasonal or transient.

Pilot Program

The pilot program allows investors to invest in approved Regional Centers. A regional center is an economic unit, public or private, which is involved in the promotion of economic growth, including improved regional productivity, job creation and increased domestic capital investment.”

Unlike the regular EB-program which requires as a general rule a $1 million investment, under the pilot program the minimum investment requirement is usually lower or only $500,000 since most Regional Centers are already in targeted employment areas. Another advantage of the pilot program is the relaxed job-creation requirement because it allows the indirect creation of employment, which may be demonstrated using forecasting tools such as multiplier tables, feasibility studies and analysis of the foreign and domestic markets for the goods or services to be exported. Investors may play a passive role in the management of their investment and need not actively manage it.

The pilot program is subject to Congressional reauthorization but has been regularly reauthorized since its inception.

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