Permanent residence or immigrant visa through investment or employment

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Immigrant visas or residences based on employment or investment fall into five categories of preference:

1. First Preference (EB-1) - Priority Workers.
2. Second Preference (EB-2) - Foreigners who are members of the professions that require a graduate degree or have exceptional ability (including applications for a national interest waiver).
3. Third Preference (EB-3) - Skilled workers, professionals, and other workers performing unskilled jobs.
4. Fourth Preference (EB-4) - Religious workers and special youth immigrants.
5. Fifth preference (EB-5) - Immigrant investors.

This category includes:

Applicants of extraordinary ability in the sciences, arts, education, business, or sports;
Outstanding Professors and Researchers;
Some executives or managers of a multinational.

Petitions for the EB1 category do not require labor certification and the petition can be made directly with the US Department of Immigration (USCIS) using Form I-140, Petition for Alien Immigrant Worker.

USCIS defines this category as “individuals with extraordinary ability in the sciences, arts, education, business, or athletics, who have been demonstrated by national or international acclaim, and whose achievements have been recognized in their field through extensive documentation. ” Applicants with extraordinary abilities can apply for EB-1 themselves and do not need to have a sponsoring employer to apply for their visa. To apply for residency or an immigrant visa in this category, the applicant must present evidence of having obtained a unique achievement with international recognition such as a Nobel Prize or evidence that he/she meets at least 3 of the following requirements:

Proof that you received awards of excellence or recognized awards;
Evidence of membership in an association in the specific field that requires as a condition that its members have outstanding achievements;
Articles in leading publications or other recognized media about the applicant’s achievements;
Evidence that the person has been asked to judge the work of other people in the specific field, either individually or as part of a panel;
Evidence of original contributions in the particular field;
Proof of authorship of articles in the particular field in leading publications or other recognized media;
Proof that the applicant’s work has been displayed at exhibitions or showcases;
Evidence of performance in a senior or important position in distinguished organizations;
Proof that the applicant earns a considerable salary compared to others in the field;
Proof of commercial successes in the performing arts.

To be classified as an outstanding professor or researcher, the applicant must provide evidence of the following:

Be internationally recognized in their field;
Have at least three years of experience in research or teaching in their academic area;
Have a job offer from an accredited university or institution of higher education to work as a senior lecturer or in a comparable research program. The job offer may also be for a permanent research position at a private institution, as long as the department employs at least 3 full-time researchers.

This category requires that the applicant have international recognition in the academic field, for which he must provide evidence that he/she meets 2 of the following conditions:

Have received recognized awards or accolades for excellence;
Belonging to associations in the particular field that require that their members have obtained outstanding achievements;
Have articles published about their work in leading or specialized publications;
Have been a judge of the work of other people, in the same field or a related academic field;
Have made original scientific or academic research contributions in their field;
Have written academic books or articles in the academic field in academic journals of international circulation.

This category allows multinational companies to transfer their executives or managers to the United States from their headquarters and / or affiliates outside the United States. To apply for residency or an immigrant visa based on this category, the applicant must prove the following:

That Applicant has worked as a manager or executive in a foreign office of the US sponsor for at least one of the three years prior to the date of transfer to the United States;
That Applicant will be employed by the sponsoring company in the United States in an executive or managerial position;
That the sponsoring US company has been a foreign branch or affiliate of the company and has been active for at least one year prior to the application.

This classification covers:

Professionals with graduate degrees
Persons with exceptional abilities in the sciences, arts, or business
National interest Waiver

The Department of Immigration (USCIS) defines a graduate degree as “a professional or academic degree, awarded by a United States institution, beyond a bachelor’s degree” (that is, above a bachelor’s degree). A foreign degree obtained at an institution abroad is acceptable only if USCIS determines that the diploma is equivalent to a United States degree. For this category, a US employer is required to apply for a labor certification and once approved, the formal petition process can be initiated with USCIS using the I-140 form. The position offered by the U.S. employer must require a graduate degree and the applicant must possess such a degree or its foreign equivalent (a baccalaureate or foreign equivalent degree plus 5 years of post-baccalaureate, progressive work experience in the field). The applicant must also meet any other requirement specified in the labor certification, as appropriate.

To apply for an immigrant visa or adjustment of status based on this EB-2 category, the following is required:

That the applicant obtained a graduate degree from a United States institution or an equivalent foreign degree; or
Applicant has a university degree from the United States or its equivalent abroad with letters from current or previous employers, showing that Applicant has at least five years of experience, and that responsibility in that profession has increased over time. This is necessary if the position offered requires a graduate degree.
If a doctoral degree is normally required for the position, the applicant must possess a doctorate obtained in the United States or an equivalent foreign degree.

The Department of Immigration (USCIS) defines ‘exceptional ability’ in the sciences, arts or business as “a degree of knowledge significantly higher than what is normally found”. This category requires labor certification unless a national interest waiver is granted. To apply for an immigrant visa or adjustment of status under this EB-2 category, the applicant must submit at least three of the following documents with his/her application:

Official academic records showing that Applicant has a degree, diploma, certificate, or similar award from a college, university, school, or other educational institution related to the field in which he or she has exceptional ability;
Letter from current or former employer documenting that the applicant has at least 10 years of full-time experience in their field;
A permit to practice the profession or a certification of the profession or occupation;
Proof that Applicant has received a salary or other remuneration for services that demonstrates the exceptional ability;
Proof that Applicant is a member of one or more professional associations;
Proof that Applicant has received recognition from colleagues, government entities, or professional or business organizations for achievements and significant contributions to the industry or field;
Other comparable evidence of eligibility is also accepted.

Those foreigners applying for a national interest waiver are requesting that the labor certification be waived because it is in the interest of the United States. Although the jobs that qualify for a national interest waiver are not defined by statute, such waivers are generally granted to those individuals who are members of the professions requiring graduate degrees or who have exceptional aptitude in the sciences, arts, or business and whose employment in the United States would greatly benefit the nation. Those interested in a national interest waiver can submit the petition themselves on their behalf (they do not need an employer to sponsor them) and must file certain portions of their labor certification directly with the USCIS along with Form I-140, Petition for foreign worker. To qualify under this classification it is required:

That the proposed work has both substantial merit and national importance;
That the foreigner is well positioned to carry out the proposed work, and
That it is beneficial for the United States to waive the requirements of a job offer and, therefore, labor certification.

This preference includes:

Specialized workers – People whose work requires a minimum of two years of training or work experience, not temporary or temporary in nature.
Professionals – People whose work requires at least a U.S. baccalaureate degree or its equivalent abroad and is a professional.
The subcategory “other workers” refers to people who perform unskilled work that requires less than two years of training or experience, not of a temporary or casual nature, and for which US workers are not available.

They must demonstrate ability in an occupation that requires at least two years of training or experience in their skill set. Under this category it is required to provide evidence that proves the following:

That the applicant has at least two years of work experience, education, or training that meets the requirements specified in the labor certification.
Relevant post-secondary education may be considered as training.
That there are no skilled workers available in the United States for that job.

They must show that they have a U.S. college degree (or its equivalent overseas) to join the profession. Under this category it is required to provide evidence that proves the following:

That the applicant has a U.S. baccalaureate degree (bachelor’s degree or professional degree) or its equivalent abroad, and that the baccalaureate degree is the normal requirement for entry into the profession;
The applicant’s education and experience are not a substitute for a baccalaureate (or professional) degree;
That there are no skilled workers available in the United States for that job;
That the Applicant meets any other requirement specified in the labor certification.

They must demonstrate the ability to perform unskilled labor that requires less than two years of training or experience. Under this category it is required to provide evidence that proves the following:

The ability to perform unskilled work (requiring less than two years of training or experience) that is not temporary or seasonal in nature.
That there are no skilled workers available in the United States
That the Applicant meets any other requirement specified in the labor certification.

To apply for an immigrant visa or adjustment of status based on this EB-3 category, the following are required:

A job offer from the employer in the United States stating that the applicant has the training and/or education required for the job;
A Labor Certification from the United States Department of Labor, which specifies the position offered, the education, training or experience required.
The petitioner (employer) must file a Form I-140, Immigrant Petition for Alien Workers and must demonstrate a continuing ability to pay the offered wage as of the priority date.

EB-4 includes a broad category of immigrants such as religious workers, Youth Special Immigrants, representatives of the Media, employees of the Panama Canal zone, certain doctors, US government employees abroad, among others.

This category covers ministers and non-ministerial workers in vocations and religious occupations and allows them to immigrate or adjust their status in the United States for the purpose of carrying out religious work in a full-time paid position. Paid work can mean by salary or without salary. Under this category, the spouse and unmarried children under the age of 21 of a special immigrant religious worker can accompany or later join the primary religious worker or adjust status in the United States.

The applicant must meet the following requirements:

Have been a member of a religious denomination that has a legitimate (bona fide) non-profit organization in the United States for at least two years immediately prior to filing a petition with USCIS;
The religious organization is a legitimate (bona fide) non-profit in the United States, or a bona fide organization affiliated with the religious denomination in the United States;
That the job is full-time in a paid position in one of the following occupations:
- As a minister or priest of a religious denomination
- A religious occupation for a religious organization that requires the applicant to have a college degree (or its equivalent abroad), either in a ministerial or non-ministerial capacity.
- A religious occupation or vocation for a religious organization in a professional or non-professional capacity. This includes missionaries, choir directors, religion teachers, etc.
Have been working in one of the positions described above after the age of 14, either abroad or in the United States, continuously for at least two years immediately before the filing of a petition with USCIS.

Documentation required for the EB-4 religious worker petition:

The employer (religious organization) must make the request with the Department of Immigration (USCIS) through Form I-360. The form must be accompanied by the following evidence:

Proof that the religious organization is a non-profit organization (for example, you can provide a valid and current determination letter from the IRS that shows that the organization is tax-exempt);
An official letter from the religious organization in the United States that includes all the information regarding compliance with the requirements under this category. The letter must include the length of time the applicant has been a member of the denomination (at least two years is required), the applicant’s experience regarding vocation or profession (at least two years is required), the way the organization will pay remuneration to the applicant, and must fully detail, as the case may be, the job functions and qualifications of the applicant (such as professional title and whether Applicant is authorized to perform religious duties, etc.).
Proof of salary or non-salaried compensation. The petitioner must provide verifiable evidence showing how the organization will compensate the religious worker, including compensation of a monetary or specific nature.
Evidence that the religious worker has been a member of the religious denomination that has a bona fide non-profit religious organization in the United States for at least two years immediately prior to the filing of Form I-360.
Evidence that establishes that the religious worker is qualified to perform the duties of the position offered.
Proof of prior religious work (abroad or in the United States).

This category covers minors in the United States who need the protection of a juvenile court because they have been abused, abandoned or neglected by their parents (or one of them). A minor who receives the SIJ classification may qualify for legal permanent residence. The minor, under 21 years of age, must be in the United States and be unmarried at the time of filing the SIJ petition (Form I-360). The requirements to qualify as a special minor immigrant (SIJ) are as follows:

The minor has been declared a dependent by a juvenile court in the United States or has been placed by the court in the custody of a state agency, entity, or individual;
That the juvenile court determines that the reunification of the minor with one or both of his or her parents is not feasible due to neglect, abandonment, abuse or a similar cause according to state laws;
That the juvenile court determines that it would not be in the best interest of the minor to be returned to his or her country, the country of his or her parents or the country of his or her last habitual residence.

The EB5 Immigrant Investor Visa is a program that allows investors (and their spouses and unmarried children under 21) to obtain permanent residence in the United States. Under this program, foreigners “making an investment in a US company” may become lawful permanent residents, and eventually apply for US citizenship. An EB-5 investor must invest the required amount of capital in a business enterprise that creates full-time jobs for at least 10 qualified US employees.

That the potential investor makes a capital investment “at risk” in a US for-profit company. The standard minimum investment amount is US $ 1 million or US $ 500,000 in areas that have been designated by the government as areas where it is required to promote job creation (Targeted Employment Areas “TEA”);
That the investment is in a commercial company, that is, any for-profit activity aimed at the continuous conduct of a legal business. The business entity can be public or private. This definition does not include non-commercial activities such as owning and operating a personal residence. The investment can be:
- In an individual business that will create 10 full-time jobs in the United States for each investor (direct investment), or
- Investment in a regional center designated by the Immigration Department where the investor can create 10 direct, indirect and / or induced jobs.
That the investor actively participate in the company.

The petition for the immigrant visa under the EB-5 category is requested through Form I-526, Immigrant Petition by Alien Investor, and if this is approved, the investor can apply for their residence (adjustment of status – Form I-485) with USCIS if investor is in legal status in the United States, or the investor can apply for an EB-5 Immigrant Visa at a U.S. consulate or embassy abroad in order to be admitted to the United States as a permanent resident. Once Form I-485 is approved, if Investor is in the United States, or after being admitted to the United States with an EB-5 immigrant visa, the investor and their derivative relatives receive conditional permanent residence for a period of two years.

During the conditional period, the EB-5 investor must continue to meet the EB5 category requirements. The investor and his/her family must apply to remove the conditions of the conditional residence 90 days before the conditional residence expires, for this they must file Form I-829, Investor Petition to Remove Conditions on Permanent Resident status. If the petition to remove the conditions on the residence is approved, the investor and their derivative relatives receive permanent resident status for 10 years, with the possibility of applying for citizenship after 5 years of residence (including the 2 years of conditional residence).

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