Employment-Based(EB) immigrant visas

Employment-Based (EB) immigrant visa petition is initially evaluated, and allocated to individual who is a “principal” beneficiary of a petition only upon satisfaction of eligibility criteria of the USCIS, to work permanently for the petitioning employer in the United States. Immediate family members such as spouse, and unmarried minor children will be counted against the EB category. This method of counting dependents impact the total number of EB visas available for other qualified principal beneficiaries waiting for priority date to be “current” in that category. Self-petition options are available in only three (3) instances as an exception to the general rule of petitioning employer. They exceptions will be discussed in detail in EB-1A extraordinary ability self petition option, EB-2 national interest waiver option, and EB-5 investor visa petition option.There are a total of 140,000 EB immigrant visas per fiscal year are allocated. Fiscal year runs from October 1st of that year to September 30th of next year.

 

Types of EB visa categories

EB immigrant visas can be categorized into five (5) types. They are EB-1, EB-2, EB-3, EB-4, and EB-5. They can be further named as follows:

1. EB-1- Priority workers. (40,000 per fiscal year).

2. EB-2-Exceptional ability. (40,000 plus any unused from EB-1 category).

3. EB-3- Skilled workers, professionals without advanced degrees, and other workers including unskilled workers. (40,000 plus any unused from the above two categories).

4. EB-4- Special immigrants including religious workers etc.(10,000 visas. If any unused in EB-4 category, will be allocated to EB-1 category).

5. EB-5-Investor visa- investment of $ 1million & investment of $ 500,000 in a regional center. (10,000 visas. If any unused in EB-5 category, they will be allocated to EB-1 category).

Per-country limit

There is a statutorily mandated per-county upper limit of 7% of total in allocation of immigrant visas per immigrant visa category.

Example:

Let’s consider an example in which country A reaches per country limit for EB-2 category every fiscal year. Country A EB-2 allocation cannot be more than 7% of 40,000 which is 2,800 unless there is unused visas from EB-1 category which can be added to that number. You also need to count not only the “principal” beneficiaries but also “derivative” beneficiaries such as spouse etc whenever their visa number becomes “current.”

Cross-chargeability option

This option is useful for beneficiary if the following two (2) conditions are met. They include: 

1. Principal beneficiary has a derivative spouse born in a different country. and

2. The beneficiary’s EB category due to per country limit is over-subscribed and waiting for the priority date to be “current,” or even during application of I-485 to USCIS, may request for this option on the cover letter.

If the derivative spouse country EB category is “current,” then the beneficiary may request USCIS for cross-chargeability option. Both the beneficiary and derivative spouse has to apply simultaneously to USCIS, and both has to be in physical company of each other (i.e., not in a divorce situation).