IV. Legal Permanent Residency (Green Card)

Employment Based Immigrant Visa Preference Categories

As there are a limited number of immigrant visas available each year, waiting lists can develop before a worker may obtain their legal permanent residency (green card) status. The length of that waiting period, if any, depends upon which "preference category" the worker belongs in, based upon their education and experience. The waiting lists move forward or back (retrogress) depending on availability in each category.

First Preference (EB-1 Visas)

The first employment-based preference (EB-1) is available to individuals without the requirement of a labor certification from the Department of Labor. This is an extremely valuable consideration as, depending on the worksite location, obtaining a labor certification can run anywhere from one to five years. Avoiding the need for a labor certification is one of the primary reasons for applying through the EB-1preference if an individual has the education and skills to do so.

The EB-1 preference is available to three primary classes of workers:

Individuals with extraordinary ability in the sciences, arts, education, business and athletics
For this category, no labor certification is required and no offer of employment is necessary. This category is extremely limited, available only to individuals at the very top of their profession. Typically, evidence of major awards, publications, and other notoriety of a national or international level is required to qualify.

Outstanding professors and researchers with universities or private employers that have established research departments
Again, no labor certification is required, although an offer of employment is required. Meeting the requirements for an outstanding professor or researcher is similar to that for extraordinary ability, but slightly less limited; evidence of the person having a national or world class knowledge and reputation in their field is required.

The EB-1 preference category also is available to managers and executives of multinational corporations who have been transferred to the United States. This is a broad category that requires no labor certification but requires an offer of employment. This category is often used by individuals already present in the United States with L-1A or E-2 nonimmigrant visas. Typically, such individuals are working for the subsidiary of a foreign corporation and are seeking to obtain legal permanent residency status.

Second Preference (EB-2 Visas and National Interest Waivers)

The second preference category is reserved for aliens of exceptional ability in the sciences, arts or business and/or advanced degree professionals. Unlike the first EB-1 preference category, a labor certification is typically required for an individual applying in this EB-2 preference category. A job offer also is required. Both of these requirements may be waived under what is referred to as a national interest waiver (NIW) addressed below. If the job offer requirement is waived by USUSCIS as being in the national interest due to the work the foreign national is performing or planning to perform, then the foreign national worker is not subject to the labor certification requirement normally applicable to EB-2 preference workers.

An individual of exceptional ability is a subjective description that is a person with notoriety less than that of an EB-1 preference category worker, but who has established a significant reputation and skills in the sciences, arts or business.; An advanced degree professional is considered to be someone with a master's degree or higher from an accredited university, or a person with a bachelor's degree and at least five years of relevant experience in their field.

National Interest Waiver Petitions

Individuals applying for employment-based immigrant visas have several alternatives. With respect to physicians and scientists, the National Interest Waiver is divided into two subcategories.

The first subcategory is concerned with highly talented physicians and scientists seeking to obtain a U.S. green card based on the claim that his/her immigration is in the U.S. national interest. In this subcategory, the applicant needs to submit substantial documentation to show that his/her permanent presence would substantially benefit this country in the field of medicine, science, etc. The physician/scientist is requesting a waiver of the job offer requirement based on national interest. No U.S. job offer is necessary.

The second subcategory concerns physicians already in the United States who have accepted positions to practice medicine in underserved areas of the country or for a facility operated by the Veterans Administration.

The National Interest Waiver category is a method of obtaining a U.S. green card without the need to pursue the lengthy labor certification process. It is applicable to both physicians and scientists with exceptional qualifications and achievements who are living outside the U.S., as well as physicians already in the United States who have accepted positions in underserved areas of the country or at a Veterans Administration facility. Other professions also may qualify for a national interest waiver, although physicians and scientists often are the most successful professions.

Third Preference (EB-3 with Labor Certification)

This preference often is referred to as the skilled workers category. This category applies to professionals with bachelor's degrees who do not have the requisite five years' experience to qualify in the second preference category. It also applies to skilled workers who would be filling positions requiring at least two years of training and experience. Individuals in this category often are technicians and technologists, among other similar employment categories. This category requires an individual have a specific job offer and a labor certification from the Department of Labor prior to applying to U.S. Citizenship and Immigration Services for immigrant benefits.

Any visas not utilized in the first, second or third employment-based preference categories may be utilized by unskilled workers, those positions for which two years of training and experience is not necessary. The unskilled workers category is essentially a limited sub-category of the third preference category.

Special Requirement for Physician Immigrants

There are a few special requirements applicable to physicians that are not binding upon other professions. First, a physician "who is a graduate of a medical school not accredited by a body or bodies approved for the purpose by the U.S. Secretary of Education (regardless of whether such school of medicine is in the United States)" and "who is coming to the United States principally to perform services as a member of the medical profession" is considered to be "inadmissible" under U.S. Immigration Law, unless the physician (i) has passed the parts I and II of USMLE and (ii) is competent in oral and written English, as proven by a standardized exam. These requirements are applicable to all the above mentioned preference categories.

Fifth Preference (EB-5) Immigrant Investor

The fifth employment-based preference is for immigrant investors. This category was created by Congress in 1990 to enable immigrant investors to invest a specific minimum amount of capital in a new commercial enterprise and which provide employment for U.S. workers to immigrate to the United States.

In contrast to the first three preference categories, the EB-5 immigration category is not based upon a job offer, but rather upon the amount of investment the foreign national is making in a business in which s/he will have an active role. A maximum of 10,000 visas are allotted per year in the EB-5 program. Investors can invest in "targeted employment areas" or areas of the United States the government has designated with a special need for additional jobs. Typically, the minimum amount to be invested under the EB-5 is $1,000,000. However, those investing in a targeted employment area can start a business with half that amount. While the EB-5 program is attractive as providing a direct route to an immigrant visa, a full review of the immigrant's intended goals, assets and risk tolerance is necessary before entering into this program. Where the EB-5 program may be unattractive due to the minimum investment requirements, other business categories such as the E-2, L-1, or B-1 business visa may enable an investor to enter the United States and establish business operations for a much lesser amount and with fewer strings attached. A person who enters with a nonimmigrant visa such as those referenced can often use an employment-based immigrant visa application in one of the first three preference categories to complete their green card processing. This category is open to physicians and other professionals and business persons with the necessary investment capital.

Physician Issues

Planning a successful immigration strategy for a physician requires knowledge of the extensive provisions of the Immigration Act and the many federal regulations unique to physicians. It also requires knowledge of medical testing and licensing requirements and a thorough understanding of the hiring issues faced by U.S. health providers. With its extensive immigration and healthcare client base, Shumaker Williams can provide the full spectrum of sophisticated legal services needed for individual physicians and institutions to successfully navigate the U.S. immigration process from visas for medical training up through legal permanent residency and citizenship.

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Please contact Craig Trebilcock at Shumaker Williams for further details.