Wykrota Law Firm • Oct 30
AMERICAN IMMIGRATION VISAS FOR PROFESSIONALS (EMPLOYMENT BASED)
Did you know that the United States has five types of visas for qualified professionals who want to move there to work? These are the so-called EB (or Employment Based) visas.
1) EB-1 is used by three types of professionals, those who have reached the top of their careers (extraordinary skills), extraordinary teachers and researchers or even executives of multinationals.
The EB-2 is intended for professionals with a good academic background (postgraduates) or professionals qualified under the law. The EB-3 is for people with advanced and special skills in their work areas. The EB-4 is indicated for religious professionals and the EB-5 is for investors in special projects located in the USA (values above about 900 thousand dollars).
Each of these visas has its specific characteristic, but as a rule, they depend on a sponsor applying for the visa for the professional, except for the EB1, EB2 and EB4 visas where, depending on the circumstances, the application can be made by the professional himself, self-petition. Employability visas have an annual share, determined by the American Government, which currently revolves around 140,000 visas divided between categories, with approximately 28.6% of visas designated for each of the first three categories and 7.1% for each of the two other categories. Another important point is that these visas allow the professional to immigrate to the United States, as well as his direct family members, composed of his wife and / or children under the age of 21 who have not married.
The EB1 aims to allow qualified professionals to emigrate to the USA, thus obtaining the well-known Green Card. This category included three types of professionals. First, those capable of demonstrating extraordinary skill in science, arts, education, business, or sports, as well as the intention to continue working in the field. These skills are demonstrated according to the criteria of the law and must be supported by national or international acclaim. The professional can apply without the need for an American job offer.
The second group are professors and researchers who demonstrate remarkable achievements in their academic field and with at least 3 years of experience in teaching and research in this area. Unlike the first category, an American job offer by an institution that conducts similar research is required.
The third group of EB-1 professionals consists of certain managers and executives from multinationals. In this case, the American multinational company will apply for the visa, respecting legal requirements. It is generally used for the migration of a professional with a temporary “L” visa, to a resident status.
2) The EB2 aims at grants the qualified professional, as well as their dependents, the benefit of residing in the USA (Green Card).
It is applicable for two types of professionals working in the fields of business, education and / or science. The first has a postgraduate degree or exercised the profession for 5 years after the bachelor's degree. The second are those who are able to meet the minimum of 3 criteria among: academic training in the area; 10 years of profession; professional license; be a member of professional associations; above average remuneration and / or; recognition of their work.
As a rule, EB2 requires a job offer from an American employer who will be the visa applicant, for the benefit of the professional and his or her family. There is an exception, allowing the request by the professional's own petition, as long as he demonstrates that his plans are within the American national interest (NIW). In this case, after qualifying as EB2, already described, he must demonstrate the national interest, being that: the plan must have substantial merit and national importance for the USA; the professional is prepared to continue the plans; and it will be beneficial to the United States to dispense with the need for an employer.
3) The EB-3 is intended for "skilled workers", "professionals" and "other workers".
These types of professionals are usually considered to be potential immigrants who do not qualify for EB-1 or EB-2 preferences, since the requirements for qualifying the professional for EB-3 are less rigid.
In short, “skilled workers” are those capable of demonstrating at least 2 years of professional experience or training in the field of activity, “professionals” are those who hold a bachelor's degree in the USA (or equivalent foreign diploma) and demonstrate that a bachelor's degree is the normal requirement for entering the desired profession and, finally, "other workers" must be able, at the time the petition is filed by the sponsoring employer, to do unskilled work (requiring less than 2 years training or experience), which is not of a temporary or seasonal nature, for which skilled workers are not available in the United States.
On the other hand, this category does not allow the petition made by the professional himself, demanding an offer of work by an American employer, as well as his respective certification with the Ministry of Labor. This category also has a longer waiting time (backlog).
4) The EB4 visa is intended for religious workers who are immigrating.
It is generally applicable to members of American non-profit religious organizations, however, this category may cover another diversity of requests such as translators from Iraq and Afghanistan, Iraqis who helped the United States, workers from international organizations, among many others.
The requirements of each request will differ in view of the different natures of each of the professionals, but as a rule, the necessary documents, in addition to the personal documents, are those that provide the necessary condition for the qualification of each person. In the case of religious workers, it is important to point out that he must have been a religious worker for the organization for at least two years and, when entering the United States, they must exercise the function of priest or minister in the organization, as well as have a professional religious occupation or unprofessional. This also includes the religious vocation, which is a call / devotion to a religious lifestyle. The candidate must have taken the vows and dedicated himself to a specific religious tradition.
Finally, this category has a much higher backlog than the previous ones, not least because it has a much smaller number of visas available annually, about 7.1% of the total visas assigned to professionals.
5) EB-5 visas were created to facilitate the entry of immigrants who stimulate the growth of the American labor market.
It is a visa designated for foreign investors who owe capital of $ 900,000 or $ 1.8 million to a US commercial entity that creates at least 10 full-time jobs for each designated investment share. The minimum mandatory capital requirement depends on where the US company that will receive the investment is located. EB-5 investors have the option of investing in business entities called “regional centers”, appointed by the Government to manage investment projects qualified for EB-5, centers that have a specific portion of the amount of visas available for the category, 7.1% of the total.
Among the various characteristics of this type of visa, it is important to mention that the investment applied must be a risky investment nature, that is, the investor has no control over the return on the invested capital. Thus, when contracting, there can be no clauses that guarantee capital return or profitability, thus making it a risky investment nature. Applicants for this type of visa must be careful with possible fraud and schemes used by third parties, as well as with possible failures in the development of the investment, especially due to the risk characteristics and the attractiveness of the proposal.
The visa application process will vary a lot from case to case, but, as a rule, it can have two aspects, as already mentioned. In a first possibility, the applicant will be the American employer who intends to hire the professional, who must proceed with the certification of the vacancy, intended for the professional, with the Ministry of Labor.
After obtaining the labor certification, which takes an average of 7 to 12 months (an increasingly long term), the employer applies for a US visa with a government agency called USCIS, which will then check the suitability of the professional to the vacancy and, if approved, will grant the visa so that it remains or travel to the United States.
A second form of application, the self-petition, must be made by the professional himself, who, as a rule, must prove the specific requirements of each visa, be it an EB1A, EB2 NIW or EB4. As a rule, the order preparation process takes about 4 to 6 months, necessary for the organization of personal and professional documents, requesting a letter of recommendation and / or expert opinion, preparation of a future work plan in the United States, filling immigration forms , necessary medical examinations and several other points.
After the elaboration and protocol, the average time of analysis of a process is about a year to a year and a half (term that is also becoming increasingly longer). It should be noted that, currently, the EB1 aims to allow the request for “premium” analysis where this total time is greatly reduced, since the judgment of the professional's qualification is made in up to 15 days.
In view of the diversity of visas and their specific characteristics, it is highly recommended that the person interested in immigrating to the United States seek qualified professional help to do so. Understanding immigration rules and their implications is a complex task and full of correlations with other legal areas, making the process complicated for anyone to navigate independently.
In addition, immigration rules and regulations are constantly evolving, which makes this area of law even more complex. In this sense, duly licensed lawyers with previous experience are recommended to assist in the visa application, since they are the only qualified professionals to provide legal advice, both in the United States and in Brazil.
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