The fifth preference employment based visa (EB5) was created in 1990 as a way for foreign investors to gain United States permanent residency (and eventual citizenship if desired), through an investment in a new or pre-existing American business that sees the creation of at least 10 new full-time jobs for American workers. The first preference employment based visa (EB1) was also created as a part of the Immigration Act of 1990, but it depends on the immigrant being able to directly provide their unique ability or talent to the American workforce through their chosen profession. In this article we will take a closer look at the EB1 and EB5 visas and see how the two compare and contrast.
EB1 Visa – This visa requires that the immigrant in question have ‘extraordinary ability,’ be an ‘outstanding professor’ or a ‘muiltinational executive or manager.’ According to the government’s web page, these terms are defined as follows:
1) Extraordinary Ability – To be considered a person of extraordinary ability ou must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Your achievements must be recognized in your field through extensive documentation. No offer of employment is required.
Required Evidence – You must meet 3 of the 10 Extraordinary Ability criteria below, or provide evidence of a one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal).
2) Outstanding professors and researchers – To qualifty as an outstanding professor or researcher you must demonstrate international recognition for your outstanding achievements in a particular academic field. You must have at least 3 years experience in teaching or research in that academic area. You must be entering the United States in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education.
Required Evidence – You must include documentation of at least two of the Outstanding prefessor or reaearcher criteria listed below and have an offer of employment from the prospective U.S. employer.
3) Multinational Manager or Executive – To qualify under this category you must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation and you must be seeking to enter the United States to continue service to that firm or organization. Your employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.
Required Evidence – Your petitioning employer must be a U.S. employer. Your employer must have been doing business for at least 1 year, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed you abroad.
Extraordinary Ability Criteria: You must meet 3 out of the 10 listed criteria below to prove extraordinary ability in your field:
* Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
* Evidence of your membership in associations in the field which demand outstanding achievement of their members
* Evidence of published material about you in professional or major trade publications or other major media
* Evidence that you have been asked to judge the work of others, either individually or on a panel
* Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
* Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
* Evidence that your work has been displayed at artistic exhibitions or showcases
* Evidence of your performance of a leading or critical role in distinguished organizations
* Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
* Evidence of your commercial successes in the performing arts
Outstanding Professor or Researcher Criteria:
* Evidence of receipt of major prizes or awards for outstanding achievement
o Evidence of membership in associations that require their members to demonstrate outstanding achievement
o Evidence of published material in professional publications written by others about the alien’s work in the academic field
o Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
o Evidence of original scientific or scholarly research contributions in the field
o Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field
* Extraordinary Ability: You may petition for yourself by filing a Form I-140, Petition for Alien Worker.
* Outstanding Professors and Researchers: Your employer must file a Form I-140, Petition for Alien Worker.
* Multinational Manager or Executive: Your employer must file USCIS Form I-140, Petition for Alien Worker.
EB5 Visa – In stark contrast to the EB1 visa, lays the EB5 investor visa. According to the government’s web page, to qualify for the EB5 visa program you must:
1) Invest or be in the process of investing at least $1,000,000. If your investment is in a designated targeted employment area (A Targeted Employment Area is defined by law as “a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.) then the minimum investment requirement is $500,000.
2) Benefit the U.S. economy by providing goods or services to U.S. markets.
3) Create full-time employment for at least 10 U.S. workers. This includes U.S. citizens, Green Card holders (lawful permanent residents) and other individuals lawfully authorized to work in the U.S. (however it does not include you (the immigrant), or your spouse, sons or daughters).
4) Be involved in the day-to-day management of the new business or directly manage it through formulating business policy – for example as a Limited Partner, corporate officer or board member.
We see in this comparison that despite the EB1 and EB5 both being employment based visas, they are very different in nature and offer disparate paths to a green card visa. While the EB1 requires significant personal accomplishment, education and/or experience along with the promise of a direct contribution to the American workforce by the immigrant in question, the EB5 visa relies on an immigrant’s investment to create new full-time American jobs for that workforce.