Employment Visas and More
Table of Contents
NON-IMMIGRANT VISA INFORMATION
B-1 Nonimmigrants
The B visa is for visitors to the U.S for business purposes, but, with no employment or compensation allowed. There are two types of visitors; the first type is a business visitor, known as B-1, and the second is a visitor for pleasure, known as B-2. For immigration purposes, the terms “visitor” and “B1/B2” are essentially the same.
What is business?
The definition of business allows for many activities, but it does not allow you to work in the U.S. for a U.S. employer. A business visitor may conduct certain business-related activities for a foreign employer. These activities include attending business meetings, making investments, signing contracts, litigating, buying or selling property, taking orders for goods to be produced outside the U.S., attending professional conferences, or public speaking. There are some additional activities that may qualify as business, but these are unique and limited, and likely not applicable.
What is pleasure?
Pleasure activities are what can commonly be thought of as tourist activities, or visiting friends and family in the U.S. There are other less common activities that are considered pleasure activities. These include receiving medical treatment and attending non-work-related conferences.
What are the eligibility requirements for a B visa?
To be eligible for a B visa, you must have a residence in a foreign country, which you do not intend to abandon. You must also intend to enter the United States for a specific, limited, time. Finally, the activities relating to your business or pleasure visit must be the only reason you are coming to the U.S. You must also demonstrate that you have the funds to pay for your visit and to ensure that you can leave the U.S. without having to work to earn these funds.
Is study in the U.S. allowed?
No. The law explicitly mentions that a B visitor cannot study in the U.S. You can come to the U.S. as a B-2 visitor to visit potential schools you might attend, attend admission interviews, or other preliminary activities related to studying in the U.S. You may not enroll in school while in B status.
I came to the U.S. as a B visitor. How can I enroll in school?
Once you have been admitted to a school, you can apply for a change of status from B to F. You cannot enroll in school until USCIS approves your change of status.
Can I take nonacademic classes?
The B visa allows you to take what are known as avocational or recreational classes. These are classes that are not related to a degree program or career preparation. For example, you might be here as a tourist and join an art history class as part of your visits to museums.
What is an “ESTA” Waiver?
ESTA stands for Electronic System for Travel Authorization. It is a clearance for travel to the U.S. without going through a visa application at a U.S. Embassy. ESTA approvals allow travel to the U.S. under the Visa Waiver Program. Citizens of countries approved for visa waiver travel are eligible to apply for an ESTA clearance, if their travel to the U..S. is for 90 days or less.
H-1B nonimmigrants
An H-1B nonimmigrant is someone who is coming to the U.S. to work in what is known as a specialty occupation. This means that to become an H-1B, the occupation itself must meet certain requirements. Generally speaking, a specialty occupation is a job that requires at least a bachelor’s degree in a specific field. A specialty occupation also requires “theoretical and practical application of a body of highly specialized knowledge.” Some common H-1B jobs are engineers and computer scientists, but there are many jobs that would qualify for an H-1B sponsorship.
Are there requirements that apply to the specific position?
Yes. In addition to the requirements that apply to the job itself, there are requirements that apply to the actual position you are filling. Your position must require a bachelor’s degree, or else the employer or industry typically must require one to work in that position. The degree must directly relate to the position you are working in.
What are the requirements that apply to me?
To work as an H-1B, you must have either a U.S bachelor’s degree or its foreign equivalent. For jobs that require a state license, this requirement can also be met by showing that you have an unrestricted state license to immediately and fully practice in that job.
Is there an annual limit on H-1Bs?
Yes. The H-1B cap limits the number of new H-1B visas and changes of status to H-1B to 65,000 each fiscal year (October 1 to September 30). In addition, there is a separate “master’s cap”: up to 20,000 H-1B visas are set aside each fiscal year for workers who have earned a master’s degree or higher from a U.S. institution of higher education. Once those 20,000 slots are used, applicants with a U.S. advanced degree are still considered for the regular 65,000 cap limit allotment.
Some employers are completely exempt from the numerical limits, known as “cap-exempt” employers. This includes H-1B workers employed by, or at, an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization. This exemption does not have a numerical limit. Because the H-1B cap applies only to new H-1Bs, it does not affect extensions of H-1B status, or changes of employer within the H-1B category.
Can I change jobs as an H-1B?
Yes. Once your H-1B petition is approved, you can change H-1B employers if another H-1B employer files a different petition for you. This is known as “H-1B portability.” You may begin working for the new H-1B employer as soon as the new petition is filed. If the new petition is denied, however, you may not be able to return to your previous employer if they have withdrawn the previous petition, so you should be careful about exercising your option to begin working for the new H-1B employer immediately upon filing.
How do I apply for H-1B status?
If you are seeking to change to H-1B status from within the U.S., your potential employer should file a Form I-129, Petition for a Nonimmigrant Worker along with an H Supplement. There are preliminary filings that your employer must make with the U.S. Department of Labor before it can file the H-1B petition.
How long can I stay as an H-1B?
The initial period as an H-1B is usually three years. You may extend your stay after this time for an additional 3 years before having to depart the U.S. Furthermore, if you are in the process of applying for a green card and have reached certain milestones in that process, you are permitted to extend your H-1B status beyond the 6 year limit in 1 or 3 year increments until you receive your green card.
O Nonimmigrants
An O nonimmigrant is someone who has extraordinary ability in the sciences, arts, education, business, or athletics. It also applies to someone with a record of extraordinary achievement in movies or television and has been recognized nationally or internationally for those achievements. You can find more information on O nonimmigrants in the USCIS Policy Manual, Volume 2, Part M.
Who is eligible?
Besides the two requirements mentioned above, you must also be coming to (or changing status within) the United States to continue work in your area of extraordinary ability. Unlike some other nonimmigrant categories, the position that you are filling does not have to be one that requires someone with extraordinary ability.
What does extraordinary ability mean?
Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that you are one of the small percentage who have arisen to the very top of your field. In practice, many undergraduate students will not reach this level until later in their careers, although certain accomplishments, such as major inventions, might qualify. PhD students/graduates are more likely than undergraduates to qualify, depending on the nature and significance of published research work.
How do I apply for O-1 status?
If you are seeking to change to O-1 status from within the U.S., your potential employer should file a Form I-129, Petition for a Nonimmigrant Worker. O nonimmigrants may not file a petition on their own behalf.
How long can I stay as an O-1?
You can stay for an initial period of up to three years. This can be extended in one-year or three year increments depending on the reasons you need the extension.
L Nonimmigrants
An L nonimmigrant is an employee of an international organization who has worked overseas for the organization, and is being transferred within the international organization to work at a related office in the U.S. It is sometimes referred to as the “intra-company transfer” visa. For example, someone who worked as a programmer for a foreign company may transfer to a U.S. office of that company to perform the same job. There are two types of L nonimmigrants. The first type is for managers or executives (L-1A), and the second is for people with specialized company knowledge (L-1B).
What are the requirements to become an L nonimmigrant?
The main requirement is that at the time you apply, you must have worked outside the U.S. for at least one continuous year out of the previous three years for the international organization in a specialized knowledge or managerial/executive capacity. This means that if you came to the U.S. as an F student (or any other category) but would have met this requirement at the time you came to the U.S., you have two years to become an L nonimmigrant. After two years and one day in the U.S. in another category, you would no longer have worked abroad for one year out of three for the international organization and would become ineligible for the L visa.
What does specialized knowledge mean?
Specialized knowledge is required for L nonimmigrants who are not managers or executives. It is “special” knowledge you possess relating to the international organization’s:
Product;
Service;
Research;
Equipment;
Techniques;
Management; or
Other interests
The knowledge must relate to how it applies to international markets for the organization.
Specialized knowledge can also be an advanced level of knowledge or expertise in the organization’s processes and procedures beyond what is commonly known in the industry. In this case, the knowledge of the organization’s processes and procedures must be greatly developed, or be further along in progress, complexity, or understanding than that generally found in the organization.
Specialized knowledge is more than expertise. The knowledge must relate to the organization and to how the organization uses that knowledge. Specialized knowledge does not have to be proprietary knowledge.
To qualify as a specialized knowledge worker, the position itself must require that knowledge. This is in addition to your possession of the specialized knowledge.
How do I apply for L status?
If you are seeking to change to L-1 status from within the U.S., your potential employer should file a Form I-129, Petition for a Nonimmigrant Worker along with an L Supplement.
How long can I stay as an L-1?
The initial period as an L is usually three years. After this initial period, a manager or executive may extend their stay for an additional four years, and a specialized knowledge worker may extend their stay for an additional 2 years.
TN/USMCA Professionals
The TN category is for Canadian or Mexican citizens and is based on the United States-Mexico-Canada free trade agreement (the USMCA). It was formerly known as the North American Free Trade Agreement (NAFTA), and is sometimes still referred to by that name.
What kind of jobs qualify?
The USMCA allows someone who is a “professional” to obtain status as a TN. For TN purposes, the term “professional” is limited to certain occupations only. Most of these jobs require at least a bachelor’s degree. These occupations were agreed upon by the three countries as part of the trade agreement. Many jobs that the average person would consider “professional” in the ordinary sense of the word are included. You can check the list of professions by referring to the list of eligible professions in the regulations.
What are the additional eligibility requirements?
Your potential job in the U.S. must require a professional as defined in the USMCA. You must also be coming to work in a prearranged full-time or part-time job for an employer. Self-employment is not permitted under the USMCA. You must also show that you have the appropriate qualifications for the profession, including education requirements or experience.
How do I apply for the USMCA/TN?
If you are a Canadian citizen, you have two options. You can apply directly at a U.S. port of entry by presenting information from your employer about the job and their plans to employ you. If you are admitted, you will be in TN status in the U.S. This is because by law, Canadians are not required to have a visa in their passport in order to be admitted to the U.S. You also have the option of having an employer file a TN petition on your behalf with USCIS. Once the petition is approved, you can show the approval to an officer at a port of entry.
If you are a Mexican citizen, your employer must file a petition with USCIS. Once it is approved, you must obtain a TN visa at a consulate abroad and then apply for admission at a U.S. port of entry.
How long can I stay as a TN?
You can stay in the U.S. for an initial period of up to three years or for the length of your employment offer, whichever is shorter. You can extend your stay for another three-year period an indefinite number of times.
E-1 Treaty Trader
The E-1 category allows a national of a treaty country to be admitted to the United States solely to engage in international trade on his or her own behalf. To be eligible for an E-2 visa, you must be a citizen of a country that has a qualifying treaty with the U.S., known as a “treaty of commerce and navigation,” or another type of agreement. A list of countries that qualify can be found on the Department of State’s website. Because the E-1 category requires that trade be the sole purpose of the nonimmigrant, it may be of limited use to most college students until graduation. However, an E-1 enterprise may hire employees.
Can I get an E-1 visa through employment for an E-1 enterprise?
Yes. Some people may be able to get E-1 status as an employee rather than as a trader. The main requirement is that you must have the same nationality as the treaty investor. If you meet this requirement, you can get E-1 status as an employee if you will be employed either as an executive or supervisor, or as an essential employee with special qualifications. This second category is more likely to apply to students or recent graduates.
Who is an essential employee?
An essential employee must have special qualifications. Special qualifications are skills and/or aptitudes which make your services essential to the efficient operation of the treaty enterprise. Several factors determine whether someone can be an essential employee. Among these are:
Proven expertise in the operations involved
Unique skills or aptitude
The proposed salary the special qualifications can command
Whether the skills are readily available in the U.S.
Knowledge of a foreign language and culture does not, by itself, meet this requirement.
How do I apply for E-1 employee status?
If you are seeking to change to E-1 status from within the U.S., you should file a Form I-129, Petition for a Nonimmigrant Worker along with an E Supplement. If you are filing at a consular post abroad, you must file a DS-160 visa application along with a DS-156E supplemental form. The initial visa validity period will depend on the specific treaty country, but in most cases will be 5 years.
How long can I stay on an E-1 visa?
Usually up to 2 years at a time but you can renew it an unlimited number of times as long as the treaty enterprise is still running and meeting the requirements.
E-2 Investor
The E-2 category is a visa for people who want to invest in and run a business in the U.S. It is often referred to as a “treaty investor visa.”
Am I eligible for an E-2 visa?
To be eligible for an E-2 visa, you must be a citizen of a country that has a qualifying treaty with the U.S., known as a “treaty of commerce and navigation,” or another type of agreement. A list of countries that qualify can be found on the Department of State’s website. You must also invest a substantial amount of money in a real enterprise in the U.S. You must also be in control of the business either through majority ownership or operational control.
What is a qualifying investment for the E-2?
There is no fixed amount of money that you are required to invest. The investment must be “substantial.” You must invest enough of your own money to make the business viable and to make it grow. For money to be considered as invested, it must be at real risk of being lost. Investing means putting a real amount of your own money into starting or buying a U.S. business so that it can work and grow. The business cannot be just a “marginal” enterprise. “Marginal” means that the business provides only enough income to support you and your family.
Do I have to hire U.S. workers?
Yes. The business can’t just support you personally. It should create jobs or otherwise benefit the U.S. economy.
How long can I stay on an E-2 visa?
Usually up to 2 years at a time but you can renew it an unlimited number of times as long as your business is still running and meeting the requirements.
How do I apply for an E-2 visa?
If you are seeking to change to E-2 status from within the U.S., you should file a Form I-129, Petition for a Nonimmigrant Worker along with an E Supplement, with USCIS. If you are filing at a consular post abroad, you must file a DS-160 visa application along with a DS-156E supplemental form. The initial visa validity period will depend on the specific treaty country, but in most cases will be 5 years.
E-2 employee
Some people may be able to get E-2 status as an employee of an E-2 company rather than as an investor. The main requirement is that you must have the same nationality as the treaty investor. If you meet this requirement, you can get E-2 status as an employee if you will be employed either as an executive or supervisor, or as an essential employee with special qualifications. This second category is more likely to apply to students or recent graduates.
Who is an essential employee?
Several factors determine whether someone can be an essential employee. Among these are:
Proven expertise in the operations involved
Unique skills or aptitude
Previous experience and/or training with the firm
The period of training or other experience necessary to perform the projected duties
The proposed salary the special qualifications can command
How long can I stay on an employee E-2 visa?
Usually up to 2 years at a time but you can renew it an unlimited number of times as long as your employer’s business is still running and meeting the requirements.
How do I apply for an employee E-2 visa?
If you are seeking to change to E2 status from within the U.S., your employer should file a Form I-129, Petition for a Nonimmigrant Worker along with an E Supplement, with USCIS. If you are filing at a consular post abroad, you must file a DS-160 visa application along with a DS-156E supplemental form. The initial visa validity period will depend on the specific treaty country, but in most cases will be 5 years.
FAMILY-BASED IMMIGRATION
Lawful Permanent Residence based on marriage
A U.S. citizen or lawful permanent resident (green card holder) can apply for a green card for their spouse through USCIS on Form I-130. Your spouse should provide USCIS with evidence of their U.S. citizenship or green card and your marriage. You and your spouse may be required to appear at a USCIS office for an interview.
Can I apply for my green card at the same time my spouse applies for me on Form I-130?
It depends. If your spouse is a U.S. citizen, then yes. If your spouse is a green card holder, you will have to wait until a visa is available based on the date your spouse filed the Form I-130 for you. You can see when a visa is available on the U.S. State Department’s Visa Bulletin under “F2A.” The application you will file if residing inside the United States is Form I-485.
What happens if my green card holder spouse becomes a U.S. citizen after applying for me?
You will no longer have to wait for a visa to be available. You can find instructions on the USCIS website under the “Special Instructions” tab for which office your spouse should notify of their U.S. citizenship.
Will I require an Affidavit of Support when I apply for my green card?
Generally, yes. A family based pathway normally requires an affidavit of support, Form I-864 or Form I-864EZ. You can read more about this requirement in the USCIS Policy Manual, Volume 8, Admissibility, Part G, Public Charge Ground of Inadmissibility, Chapter 6, Affidavit of Support Under Section 213A of the INA.
Other family-based immigration options
You can learn more about other family-based immigration options on this website.
EMPLOYMENT-BASED IMMIGRATION
Extraordinary Ability (also known as EB-1A)
I have heard of a pathway called the Einstein Visa. Do I need to show that level of achievement and if the requirements are challenging, why should I try this pathway?
No, you do not have to be an “Einstein,” and there are advantages to this pathway. The law requires that you are known at the national or international level and that you are considered at the top of your field; however, there are feasible ways for talented people to meet these requirements.
There are two advantages to this pathway:
You do not need an employer to sponsor you and you do not need a labor certification from the U.S. Department of Labor (DOL). That means that you can apply with USCIS for this benefit yourself using Form I-140.
As a “first preference” pathway, you will have a shorter wait for a green card, and often no wait time at all for individuals born in countries other than India or China.
How do I show that I have extraordinary ability? Is it enough if I am currently in the United States on an O-1 Nonimmigrant (temporary) Visa for those with extraordinary ability?
There are two options to qualify for this pathway, with the second being the most common.
There are two advantages to this pathway:
You have a one-time achievement. The law says that a qualifying achievement is a major, internationally recognized award, which is a very high standard. The example in the USCIS Policy Manual is a Nobel Prize. Even if you think you have received such an award, it is also advisable to explain how you also qualify under the second option below in the alternative.
- OR -
You have achievements that fall under at least three of a list of ten “criteria.” If you can show that one of the ten criteria does not relate to your occupation, you can rely on different achievements if you explain how that different achievement is comparable to the inapplicable criterion. Only a one-time achievement, however, can be enough by itself. If you rely on an achievement that is comparable to one of the criteria, you must still show at least three achievements total.
USCIS does not approve applications (petitions) for an immigrant (permanent) pathway based on a prior approval of a similar nonimmigrant (temporary) pathway. While you should mention your approval for an O-1 nonimmigrant visa if you received one, you must still explain to USCIS why you are eligible for the immigrant visa based on the documents you are including with your immigrant pathway application (petition).
What are the ten “criteria” from option 2 above? Are letters from colleagues enough for USCIS to approve my Form I-140?
The ten criteria, of which you need to meet three, follow:
You have received nationally or internationally recognized awards;
You are a member of an organization that requires outstanding achievements of its members;
There is published material about you;
You have served as a judge of the work of others;
You have made contributions of major significance in your field;
You have authored scholarly articles;
You have displayed your work at an artistic exhibition or showcase;
You have performed in a leading or critical role for an organization with a distinguished reputation;
You have commanded a high salary or other significantly high payment for your work; or
You can demonstrate commercial success in the performing arts.
You can document any three (or more) of these achievements that relate to your occupation. USCIS cannot hold it against you for failing to document a particular achievement as long as you document at least three.
You can find more detailed information about these achievements (criteria) in the USCIS Policy Manual, Volume 6, Immigrants, Part F, Employment-Based Classifications, Chapter 2, Extraordinary Ability, Section B, Evidence of Extraordinary Ability, Subsection 1, Initial Evidence of Extraordinary Ability.
For guidance on what not to submit to avoid scanning delays by USCIS when processing your petitions, see Recommendations for Paper Filings to Avoid Scanning Delays on the USCIS website.
Is showing a sufficient number of achievements enough to qualify as having extraordinary ability?
No. The list of ten achievements (criteria) is a check list of the types of achievements you must have to make it past the first step of review. Once USCIS agrees that you have three qualifying achievements (also known as satisfying at least three criteria), USCIS will then review all of the evidence you have submitted as a whole to determine if all of the evidence presented shows that you have “sustained national or international acclaim” and are one of the “small percentage at the top of the field.” USCIS refers to this second step as a “final merits determination.”
You can learn more about this second step of review in the USCIS Policy Manual, Volume 6, Immigrants, Part F, Employment-Based Classifications, Chapter 2, Extraordinary Ability, Section B, Evidence of Extraordinary Ability, Subsection 2, Final Merits Determination.
Do I need to have a job offer? Is it ok if I plan to start my own business either by myself or with someone else?
No, you do not need a job offer and can apply for this pathway on your own with USCIS on Form I-140. Yes, plans to start a business in your area of expertise are acceptable. Whether you plan to work for a company or start your own business as an entrepreneur, you need to explain to USCIS how you plan to continue to work in your area of expertise. To show your intent, you can submit:
Letters from potential employers;
Prearranged commitments such as contracts; or
Your own statement explaining in detail how you intend to continue your work in the United States.
Outstanding Professors and Researchers (also known as EB-1B)
How does this pathway compare to extraordinary ability?
This pathway is also a “first preference” classification, but there are the following significant differences between this pathway and extraordinary ability:
You cannot apply for this pathway on your own. While you do not need a labor certification from the U.S. Department of Labor, your employer does need to apply for you (on Form I-140) with USCIS and must offer you a tenure, tenure-track, or permanent job.
You must have at least three years of teaching or research experience. Experience gained while a graduate student is allowed if you received the degree and:
You had full responsibility for the class taught (for any teaching experience); or
Your research conducted towards the graduate degree is recognized as outstanding.
You only need to document two, rather than three, achievements before USCIS will proceed to the second step of review.
The legal standard is that you must be internationally recognized as outstanding.
What do I need to have accomplished to be considered outstanding?
You must document at least two of the following accomplishments:
You received a major prize or award;
You are a member of an organization that requires outstanding achievements of its members;
There is published material about your work;
You have served as a judge of the work of others;
You have made contributions of major significance in your field;
You have authored scholarly books or articles;
You may rely on a different accomplishment if any of the six “criteria” above do not apply to your documentation and you can show the different accomplishment is comparable to a criterion. You can find more detailed information about these achievements (criteria) in the USCIS Policy Manual, Volume 6, Immigrants, Part F, Employment-Based Classifications, Chapter 3, Outstanding Professor or Researcher, Section B, Evidence, Subsection 1, Assess Whether Evidence Meets Any Regulatory Criteria.
For guidance on what not to submit to avoid scanning delays by USCIS when processing your petition, see Recommendations for Paper Filings to Avoid Scanning Delays on the USCIS website.
Do two accomplishments demonstrate my international recognition?
No. The list of six achievements (criteria) is a check list of the type of achievements you must have to make it past the first step of review. Once USCIS agrees that you have two qualifying achievements (also known as satisfying at least two criteria), USCIS will then review all of the evidence you have submitted as a whole to determine if all of that evidence shows that you are internationally recognized as outstanding. Documents such as letters from experts outside your circle of colleagues in more than one country and citations of your research from research teams in more than one country can help you show your reputation in more than one country. You can learn more about this second step of the review in the USCIS Policy Manual, Volume 6, Immigrants, Part F, Employment-Based Classifications, Chapter 3, Outstanding Professor or Researcher, Section B, Evidence, Subsection 1, Final Merits Determination.
What is required for the job offer? Can a post-doctoral position be considered permanent?
Your sponsoring employer must be:
A U.S. college or university; or
A private employer with documented accomplishments that employs at least three full-time researchers.
Your sponsoring employer must include in your application a job offer:
For a tenure or tenure-track position; or
For a permanent research position, meaning the offer has no specific end date and you expect to continue in the position unless your employer has good cause to end your employment. The offer, however, does not need to specifically include “good cause” language as long as the intent is for the job to be for an unlimited period.
In deciding whether a position is permanent, USCIS may consider rules limiting how long one person can serve in the position but also any documents confirming funding is routinely renewed for the position. You can learn more about the job offer requirements in the USCIS Policy Manual, Volume 6, Immigrants, Part F, Employment-Based Classifications, Chapter 3, Outstanding Professor or Researcher, Section D, Offer of Employment.
Your employer must also demonstrate that it has the financial ability to pay you the salary it listed on the Form I-140. A university can typically show this with its annual report while private employers often rely on their federal tax returns or corporate Annual Report. You and your employer can read more about demonstrating an ability to pay the salary in the USCIS Policy Manual, Volume 6, Immigrants, Part E, Employment-Based Immigration, Chapter 4, Ability to Pay.
Advanced Degree Professionals – Normal Processing
I graduated with a Master’s or Ph.D. A U.S. employer wants to hire me. Is there a path to a green card for individuals like me holding an advanced degree?
Yes. The employment-based second preference classification (commonly referred to as EB-2) is a pathway for individuals who have completed an advanced degree and have a job offer for a position that requires at least an advanced degree. In fact, USCIS also considers a bachelor’s degree followed by 5 years of experience as an advanced degree.
While there are two exceptions discussed below, in general, your employer will need to take certain steps before you can apply for a green card based on your advanced degree:
Your employer will need to apply for a “prevailing wage determination” (Form ETA-9141), test the U.S. labor market to confirm there are no U.S. workers able, willing, qualified, and available for your positions,and then request a “labor certification” (Form ETA-9089) from the U.S. Department of Labor (DOL). When DOL approves the labor certification, that means your employer was able to show that there were no U.S. workers able, willing, qualified, and available for your position. You and your employer can read more about this process on DOL’s website. You can also find the processing times for these requests on DOL’s website.
After DOL approves the labor certification, your employer will need to apply on Form I-140 with U.S. Citizenship and Immigration Services (USCIS).
What does my sponsoring employer need to show USCIS?
There are several things your employer must show:
That you have an advanced degree (a degree above a bachelor’s degree or a bachelor’s degree followed by 5 years of experience);
That your occupation is a profession (requires at least a bachelor’s degree for entry into the occupation);
That the job you are being offered requires someone with an advanced degree and that you meet all of the education and experience requirements for the job; and
Your employer has the financial ability to pay you the wage they listed on the DOL applications.
USCIS will review your transcript or diploma, and any evaluation of that degree if from a country other than the United States, to determine if you have an advanced degree.
Your employer can include printouts from O*Net or the Occupational Outlook Handbook to show that your occupation typically requires at least a bachelor’s degree for entry into the occupation.
USCIS will review the forms your employer gave to DOL for the specific job requirements and the salary your employer promised to pay you.
USCIS will review your education and any letters from your prior employers to determine if you have the education and experience required for the job.
USCIS will review your employer’s tax returns or other financial documentation to determine whether it has the ability to pay you the promised wage. You and your employer can read more about demonstrating an ability to pay the salary in the USCIS Policy Manual, Volume 6, Immigrants, Part E, Employment-Based Immigration, Chapter 4, Ability to Pay.
You can read more about this pathway in the USCIS Policy Manual, Volume 6, Immigrants, Part F, Employment-Based Classifications, Chapter 5, Advanced Degree or Exceptional Ability, Section A, Advanced Degree Professionals.
USCIS approved my application (Form I-140). How long do I have to wait for a visa to become available so I can apply for a green card?
It depends. This pathway is called “second preference” or “EB-2,” so the wait for a green card is usually longer than for the “first preference” or “EB-1” pathways discussed above. The day your employer applies for a labor certification with DOL is your “priority date.” A visa will become available to you based on your priority date and your country of birth. You can see current visa availability by reviewing the U.S. Department’s Visa Bulletin, which is published monthly.
Exceptional Ability (EB-2)
I only have a bachelor's degree or my occupation is not considered a profession. Is there still a way for me to qualify for second preference classification?
Yes. Second preference is also available to persons with exceptional ability. Unlike extraordinary ability (which is a first preference classification and allows you to apply for yourself), exceptional ability generally requires an employer to sponsor you. While there are two exceptions discussed below, in general, your employer will need to take certain steps before you can apply for a green card based on your exceptional ability:
Your employer will need to apply for a “prevailing wage determination” (Form ETA-9141), test the U.S. labor market to determine if there are any U.S. workers able, willing, qualified, and available for the position, and then request a “labor certification” (Form ETA-9089) from the U.S. Department of Labor (DOL). When DOL approves the labor certification, that means your employer was able to show that there were no U.S. workers able, willing, qualified, and available for the position. You and your employer can read more about this process on DOL’s website. You can also find the processing times for these requests on DOL’s website.
After DOL approves the labor certification, your employer will need to apply on Form I-140 with U.S. Citizenship and Immigration Services (USCIS).
What does my sponsoring employer need to show USCIS?
There are several things your employer must show:
That you have exceptional ability;
That the job you are being offered requires someone with exceptional ability and that you meet all of the education and experience requirements for the job; and
Your employer has the financial ability to pay you the wage they listed on the DOL applications.
To determine whether you have exceptional ability, USCIS will review your accomplishments under the following “criteria” to determine whether you have at least three of the following accomplishments:
You have a degree, diploma, certificate or similar award;
You have at least 10 years of experience in the occupation;
You have a license or certification to practice in the profession or occupation;
You have earned a salary consistent with exceptional ability;
You are or were a member of a professional association; or
You have received recognition for achievements and significant contributions to the industry or field.
Your employer may also include evidence of a comparable accomplishment if the above do not apply to your occupation.
Once USCIS agrees you have at least three of the necessary accomplishments, USCIS will review all of the evidence together to determine whether you have a degree of expertise significantly above that ordinarily encountered.
USCIS will review the forms your employer submitted to DOL for the specific job requirements and the salary your employer promised to pay you.
USCIS will review your education and any letters from your prior employers to determine if you have the education and experience required for the job.
USCIS will review your employer’s tax returns or other financial documentation to determine whether it has the ability to pay you the promised wage. You and your employer can read more about demonstrating an ability to pay the salary in the USCIS Policy Manual, Volume 6, Immigrants, Part E, Employment-Based Immigration, Chapter 4, Ability to Pay.
You can read more about this pathway in the USCIS Policy Manual, Volume 6, Immigrants, Part F, Employment-Based Classifications, Chapter 5, Advanced Degree or Exceptional Ability, Section B, Exceptional Ability.
USCIS approved my application (Form I-140)! How long do I have to wait for a visa to be available so I can apply for a green card?
It depends. This pathway is called “second preference” or “EB-2,” so the wait is usually longer than for the “first preference” or “EB-1” pathways discussed above. The day your employer applies for a labor certification with DOL is your “priority date.” A visa will become available to you based on your priority date and your country of birth. You can see current visa availability by reviewing the U.S. Department’s Visa Bulletin, which is published monthly.
National Interest Waiver of the Labor Certification
I do not have an employer, my employer does not want to sponsor me, or I want to skip the Labor Certification process with the U.S. Department of Labor. Can I apply on my own as an advanced degree professional or person of exceptional ability?
Yes. The law allows USCIS to “waive” the job offer, which USCIS has always interpreted to include a waiver of the labor certification process and employer sponsorship requirements. The waiver does not waive the requirement that you are a professional with an advanced degree or a person of exceptional ability.
This process is known as the National Interest Waiver and you can apply for this waiver with USCIS as part of a Form I-140.
What factors do USCIS adjudicators consider when deciding national interest waiver applications?
There are three sets of factors (prongs).
Whether your planned work and goals (endeavor) in the United States have substantial merit and national importance;
Whether you are well positioned to advance those goals; and
On balance, whether it would be beneficial to the United States to waive the job offer and labor certification requirements.
USCIS will review the details about the type of work you propose to do as well as the direct impacts you expect this work to have on your field, a geographic region, or the general public. You will need to show more than that there is a national shortage of workers in your field, the importance of your field in general, or that you work for an employer with a national footprint. Instead, you must show the implications of your work, such as a new manufacturing process or public health benefit.
You can show that you are well positioned to advance your endeavor through your education, skills, knowledge, and record of success. Reference letters can be helpful if they provide specific examples and are supported by other evidence, such as patents that have attracted interest or well-cited articles.
Finally, you can show that, on balance, it is beneficial to waive the job offer because:
It would be impractical to obtain a labor certification from the U.S. Department of Labor because, for example, of your unique skills or you will be self-employed;
There are benefits from your work even if other U.S. workers are available; or
The national interest benefit is urgent, such as a time-sensitive public health or safety benefit.
Where can I find detailed guidance on National Interest Waivers?
The U.S. Department of Justice and USCIS have published considerable detailed guidance. That guidance includes:
A decision from the USCIS Administrative Appeals Office that the U.S. Departments of Homeland Security and Justice have designated as binding on USCIS adjudicators, Matter of Dhanasar, 26 I&N 884 (AAO 2016).
Detailed discussion in the USCIS Policy Manual, Volume 6, Immigrants, Part F, Employment-Based Classifications, Chapter 5, Advanced Degree or Exceptional Ability, Section D, National Interest Waiver of the Job Offer.
National Interest Filing Tips included at the bottom of the Employment-Based Immigration: Second Preference EB-2 webpage.
What pathway is available if I only have a bachelor’s or lesser degree?
You may qualify as a professional or skilled worker (third preference). To qualify as a professional, you must have at least a bachelor’s degree and your occupation must require at least a bachelor’s degree for entry into the occupation. To qualify as a skilled worker, you must have at least two years of college education, training, or experience.
Must I have an employer sponsor me?
Yes. Your employer will need to take certain steps before you can apply for a green card:
Your employer will need to apply for a “prevailing wage determination” (Form ETA-9141), test the US labor market to confirm there are no U.S. workers able, willing, qualified, and available for the position,and then request a “labor certification” (Form ETA-9089) from the U.S. Department of Labor (DOL). When DOL approves the labor certification, that means your employer was able to show that there were no U.S. workers able, willing, qualified, and available for the position. You and your employer can read more about this process on DOL’s website. You can also find the processing times for these requests on DOL’s website.
After DOL approves the labor certification, your employer will need to apply on Form I-140 with U.S. Citizenship and Immigration Services (USCIS).
The National Interest Waiver of the job offer, labor certification, and employer sponsorship is not available for this pathway.
What must my sponsoring employer show?
There are several things your employer must show:
That you have a bachelor’s degree or at least two years of college education, training, or experience;
If you are a professional, that your occupation is a profession (i.e., requires a bachelor’s degree for entry into the occupation);
That the job you are being offered requires someone with a bachelor’s degree or two years of college education, training, or experience and that you meet all of the education and experience requirements for the job; and
Your employer has the financial ability to pay you the wage they listed on the DOL applications.
USCIS will review your transcript or diploma, and any evaluation of that degree if your degree was obtained from a country other than the United States, to determine if you have the equivalent of a U.S. bachelor’s degree.
Your employer can include printouts from O*Net or the Occupational Outlook Handbook to show that your occupation typically requires at least a bachelor’s degree for entry into the occupation.
USCIS will review the forms your employer submitted to DOL for the specific job requirements and the salary your employer promised to pay you.
USCIS will review your education al documentsand any letters from your prior employers to determine if you have the education and experience required for the job.
USCIS will review your employer’s tax returns or other financial documentation to determine whether it has the ability to pay you the promised wage. You and your employer can read more about demonstrating an ability to pay the salary in the USCIS Policy Manual, Volume 6, Immigrants, Part E, Employment-Based Immigration, Chapter 4, Ability to Pay.
You can read more about this pathway in the USCIS Policy Manual, Volume 6, Immigrants, Part F, Employment-Based Classifications, Chapter 7, Skilled Worker, Professional, or Other Worker.
Investor Pathway
Can I invest in a U.S. company or development project to apply for a green card on my own?
Yes. Depending on the location, you can invest either $1,050,000 or $800,000 in your own business or in a joint (pooled) investment project managed by a USCIS-designated “regional center.” This pathway is known as fifth preference or “EB-5.”
Whether you invest in your own company or through a regional center, the entity in which you place your funds is known as the “new commercial enterprise.” In regional center cases, the regional center will organize the new commercial enterprise and solicit EB-5 investors for a project it has proposed to USCIS. (USCIS must approve the project before it considers applications (petitions) from investors.)
You do not need an employer to sponsor you for this pathway and can apply yourself with USCIS on Form I-526 or, if based on an investment through a regional center, Form I-526E.
Do I have to invest my own money and show where I got it?
Yes. The law requires that you invest your own money and show that you acquired it legally. You can invest money that someone gifted or loaned to you, but you must show where they acquired it. Exception: If you borrowed money from a bank, you do not have to show where the bank acquired it.
The law provides a list of documents you can use to show how you obtained your money, including tax returns, gift letters, and property records. You can read more about showing that you legally acquired your money in the USCIS Policy Manual, Volume 6, Immigrants, Part G, Investors, Chapter 2, Immigrant Petition Eligibility Requirements, Section A, Investment of Capital, Subsection 4, Lawful Source of Funds.
You must also be able to trace the “path” of your funds from their source to you and then to the company in which you are investing. Checks, bank statements, and wire transfer documents are examples of how you can show these transactions took place.
When can I invest $800,000 instead of $1,050,000?
There are two ways to take advantage of the reduced investment amount.
You can invest in a company or regional center sponsored project in either a rural area or an area that suffers from high unemployment compared with the national rate (known as targeted employment areas); or
You can invest in a regional center sponsored infrastructure project.
You can read more about targeted employment areas in the USCIS Policy Manual, Volume 6, Immigrants, Part G, Investors, Chapter 2, Immigrant Petition Eligibility Requirements, Section A, Investment of Capital, Subsection 5, Targeted Employment Area. If you invest through a regional center, it will have already demonstrated to USCIS whether its project is either in a targeted employment area or meets the definition of an infrastructure project.
What are the requirements if I invest in my own new business?
The requirements follow:
You are investing your own, legally obtained funds;
If taking advantage of the reduced investment amount, documentation that your company will be doing business in a rural area or one that suffers from high unemployment;
All of your investment funds are “at risk” with your company, meaning you cannot loan them to the company;
You will be involved in the management of your company; and
Your company will create at least 10 full-time positions for U.S citizen or immigrant employees who will work directly for your company.
You can read more about EB-5 requirements in the USCIS Policy Manual, Volume 6, Immigrants, Part G, Investors, Chapter 2, Immigrant Petition Eligibility Requirements.
Are there fewer requirements if I invest through a USCIS-designated regional center?
Yes. Before soliciting investors, the regional center will have resolved all issues relating to:
Whether the project is in a rural or high unemployment area or qualifies as an infrastructure project;
That the investment documents ensure investors are placing their money at risk and meet the minimal management requirements; and
That the project will create the necessary employment for the expected number of investors. (Regional center projects, unlike individual investments, can rely on job creation outside the project, known as indirect jobs.)
Because of the regional center’s efforts, you will only need to show:
How you legally obtained your funds; and
The path of those funds from their source through you to the new commercial enterprise.
Are there limits on my green card if I get it as an investor?
Yes. You will receive a temporary “conditional” green card valid for two years, which means that you will need to apply to remove those conditions with USCIS within the 90-day period leading up to the two-year anniversary of receiving your green card on Form I-829. At that time, you will need to show that you kept your investment at risk for at least two years and created the necessary jobs. You can read more about removing conditions on the USCIS Website, Suggested Order of Form I-829 Documentation.
What are my options if I invest in a regional center and USCIS sanctions my regional center or new commercial enterprise before I remove my conditions?
There are limited protections for innocent investors in sanctioned regional centers or new commercial enterprises. You can read more about these protections in the USCIS Policy Manual, Volume 6, Immigrants, Part G, Investors, Chapter 3, Section E, Good Faith Investors Following Program Noncompliance by a Regional Center, New Commercial Enterprise, or Job-Creating Entity.
Are the regulations on this pathway up to date?
No. The regulations relevant to this program are located at 8 CFR 204.6 and 8 CFR 216.6. In 2022, however, Congress passed a major revision of the EB-5 program. The most up to date information for those interested in applying under this program today is the law, INA 203(b)(5), INA 216A, the USCIS Policy Manual, and the USCIS EB-5 webpages, including EB-5 Questions and Answers.
I was born in a country where an EB-5 visa is not available for several years due to a backlog. Is there a way to speed up when I can get my green card?
Possibly. There are three categories that may allow for a shorter wait to obtain a green card:
Investments in a rural area (a 20% set aside);
Investments in areas with a high unemployment rate (a 10% set aside); and
Investments in an infrastructure project (2% set aside).
You can compare when visas are available for investments in these types of projects using the Department of State’s Visa Bulletin.
U.S. immigration regulations are rapidly changing. Immigration rules can change quickly, and what is accurate today may not be true tomorrow. This information is for educational purposes only and does not constitute legal advice. For specific immigration questions or complex situations, consult with a qualified immigration attorney.