For the services that I needed, timing was critical above all else. After my case was transferred to Younossi Law, whenever I had an issue or question I got someone to help me immediately. With them on my side it was smooth sailing. Their responsiveness and human touch made all the difference. I can not thank them enough”

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Software Engineer

Employment-Based Permanent Residence (EB)

One route for Permanent Residence in the United States is for an employer to sponsor an individual
based on a position with the company or on the individual's activities or hierarchy within the company. Depending on the duties performed, the level and requirements of the position, and the individual's background, one of the many routes for employment-based Permanent Residence outlined below may be appropriate.

Factors Affecting Visa Availability

It is important to note that there is a limit
on how many immigrant visa numbers are made available by the government each year. The number of employment-based immigrant visas issued each year, and how those numbers are distributed, is governed by the Department of State.

How the numbers are made available is determined on a monthly basis
by the DOS based on the number of Permanent Resident applications reported as being in the queue or approvable by the USCIS, the Department of Status via US Consulates abroad, and by the reported number of approved Labor Certification applications supplied by the Department of Labor. The Department of State summarizes its calculations and immigrant visa number availability in its monthly Visa Bulletin.

Immigrant Visa numbers are to be distributed so that no one country dominates the immigrant visa use, and no one preference category absorbs the month's, or year's, allotment too quickly by itself. Individuals from countries with larger immigrant populations to the U.S. can therefore expect longer wait times until an immigrant visa number is available for him/her.

Wait Times & Preference Categories

Generally how long an individual has to wait
for one of the numbers to be available for him/her depends on a variety of factors, including the individual's country of birth, the date the first stage of the Permanent Residence process is filed with the government thereby establishing a "Priority Date," the background of the individual, the type of position he/she is filling in the U.S., the requirements of that position, and if the skill set and goals of the individual are of a national interest to the U.S.

These factors allow the government to assign a Preference Category to the individual
during his/her path to Permanent Residence. The higher Preference Category generally delineates the value of the individual's skill set and background are to the U.S.

Employment based Preference Categories
are abbreviated as EB-# with an explanation of the four categories explained as such:

• EB-1 Priority workers
• Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics
• Foreign national that are outstanding professors or researchers
• Foreign nationals that are managers and executives subject to international transfer to the United States
• EB-2 Professionals with advanced degrees or persons with exceptional ability
• Foreign nationals of exceptional ability in the sciences, arts or business
• Foreign nationals that are advanced degree professionals
• Qualified alien physicians who will practice medicine in an area of the U.S. which is underserved. Read more about this particular program.
• EB-3 Skilled or professional workers
• Foreign national professionals with bachelor's degrees (not qualifying for a higher preference category)
• Foreign national skilled workers (minimum two years training and experience)
• Foreign national unskilled workers
• EB-4 Special Immigrants
• Foreign national religious workers
• Employees and former employees of the U.S. Government abroad

Explanations of Employment Based Criteria

Extraordinary Ability

The first subset of individuals who would fall into the EB-1 Priority Worker category are the EB1-1 individuals of Extraordinary Ability in the Sciences, Arts, Education, Business, and Athletics.

There is historically no wait for Immigrant Visa numbers in this category,
making this an attractive option for individuals from countries that experience backlogs of Immigrant Visa numbers to the U.S. As such, review of this sort of petition by the USCIS receives a high level of scrutiny. As with the nonimmigrant O-1 visa category, you must be at the top of your specifically identified field internationally within these recognized areas, and you must be able to substantiate the claim with documentation.

This is not a route to Permanent Residence for the overly humble,
so we work very closely with you to understand what it is that makes you extraordinary, how you have risen to be recognized as the top of your field, and which of the criteria you would need to meet for the EB1-1. This petition does not require an employer sponsor, but employment sponsorship can further support the basis of your extraordinary talents and accomplishments. Further, if no employer sponsor exists, you must be petitioning to remain in the U.S. and continue to work in your field.

Outstanding Researcher or Scientist

The second subset of individuals who would fall into the EB-1 Priority Worker category are the EB1-2 individuals who are Outstanding Researchers and Scientists.

There is historically no wait for Immigrant Visa numbers in this category,
also making this an attractive option for individuals from countries that experience backlogs of Immigrant Visa numbers to the U.S. Accordingly, review of this sort of petition by the USCIS receives a high level of scrutiny. You must be recognized internationally as being outstanding in your field of research and must have sufficient number of years experience doing research. You must be offered a position in the U.S. with a company that employs other Researchers and has itself made notable achievements. We work very closely with you to understand which academic area your research supports, how you have risen to be recognized as outstanding within your field, and what types of documentation you and your employer can provide in support of the EB1-2.

Multinational Managers or Executives

The third subset of individuals who would fall into the EB1-3 Priority Worker category are the Multinational Managers and Executives.

There is historically no wait for Immigrant Visa numbers in this category,
also making this an attractive option for individuals from countries that experience backlogs of Immigrant Visa numbers to the U.S. Accordingly, review of this sort of petition by the USCIS receives a high level of scrutiny. Of the three EB-1 categories the EB1-3 can be more straightforward with regards to determining whether you would easily qualify or not.

Individuals who qualify for this category would have held a high-level managerial or executive position abroad and are petitioned by a U.S. sponsor. You would need to have worked for the qualifying entity abroad in the managerial or executive capacity for at least one year within the last three year.

If you managed the company, a division, a team, or a significant function within the company abroad and your managerial or executive-level skills are needed in the U.S. to advantage the U.S. company, then this is the category for you.

National Interest Waiver

The Employment-Based 2nd Preference category (EB-2) is set aside for individuals who are being sponsored by employers for positions requiring an advanced degree. For most cases in this category, the U.S. labor market must be tested to prove that a qualified and willing U.S. worker is not available to permanently fill the offered position.

Also included in the EB-2 category, but without the labor market test requirements, is the National Interest Waiver. A National Interest Waiver filing requests of the USCIS that they waive the labor market test requirements based on your coming to the U.S. to fill a position that is of national significance and scope.

What positions would qualify as for the "national interest" has not been clearly defined and so lead to this category becoming the source of many attempted filings. The government then came to believe that the filings were frivolous for positions clearly not contemplated for this category originally. As a result, case law has set the standard for this category much higher than it was previously. We therefore would need to work closely with you to determine whether your background, skill set, and expertise are such that a test of the U.S. labor market would not be necessary and if you would qualify for the National Interest Waiver category.

Labor Certification

The most common route for employment-based Permanent Residence adds an initial step to the process, and that is the Labor Certification application which involves the Department of Labor.

The Labor Certification process requires that your employer test the U.S. labor market for a specific position at the company to see if a qualified, willing, and able U.S. worker is available to fill the position. If a qualified U.S. worker is not found based on vigorous Department of Labor mandated recruitment steps, the company is able to file the application with the Department of Labor (DOL). The DOL's role is to protect U.S. workers and so before approving the application, they must make sure that the requirements are appropriate for the position, that the proper wage is being paid, and that the recruitment conducted was done properly.

Historically, this was a very long process and involved both state- and federal-levels of the Department of Labor. In recently years DOL revamped the Labor Certification process and implemented the PERM (Program Electronic Review Management) Labor Certification system. PERM is an on-line, attestation-based system that has cut the processing time of Labor Certification applications from 3-4 years down to substantially less time, often only a few months.

It is important to remember that the PERM Labor Certification application is an application by an employer to the DOL regarding a specific permanent position with the company. We therefore work very closely with the employer to determine what the hiring requirements are at the company for the position and to create the appropriate recruitment program.

Although the employer wishes to sponsor you for Permanent Residence based on this position, it is not your background and qualifications that determine the requirements for the position. What the company's requirements are for the position will ultimately define how quickly you move through the Permanent Residence process. It is employer's requirements that define which Employment-Based (EB) Preference Category you will be assigned as you move to the next steps in the Permanent Residence process that involve the USCIS and the Department of State.

Generally, positions that require an advanced degree (greater than a baccalaureate degree) or a bachelor's degree and five years of progressive experience will be assigned as EB-2, and positions that require a bachelor's degree will be assigned as EB-3.

The date on which the PERM Labor Certification application is filed with the DOL will become your Priority Date. The Priority Date will follow you throughout the Permanent Residence process and, along with your EB category, will become how your place in line for an Immigrant Visa number is determined.

To learn how Younossi Law can help you benefit from a strategic immigration and hiring program, contact us today.

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