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EB-5 Visa Blog

How EB-5 Compares: Understanding the Difference Between the Employment Based Visa Categories

Kate Kalmykov

Foreign nationals interested in EB-5 often know of its benefits:

  1. Ability to self-sponsor for a green card
  2. Ability to satisfy immigration regulations related to active management in the EB-5 enterprise through voting rights as a limited partner or limited liability member
  3. Not tied to an employer sponsor
  4. Allows the investor to be geographically mobile

Nonetheless, they often ask in consultations how the EB-5 visa compares with the other employment based visa categories.  The following is a chart that highlights the relevant issues for green card applicants:

 

EB-1

EB-2

EB-3

EB-5

Definition

The EB-1 category is broken down into 3 parts:

 

EB-1-A: Aliens of Extraordinary Ability i.e. individuals at the top of their field

 

EB-1-B: Outstanding Researchers or Professors

 

EB-1-C: Multinational Executives or Managers

 

Members of professions holding an advanced degree (Master's or higher), as well as persons of exceptional ability in the sciences, arts, or business (applying through the labor certification process known as PERM or through a National Interest Waiver).

Professionals  with Bachelors' degrees, and skilled workers with a minimum of two years of training

Immigrant Investors.  The EB-5 category permits investment through either a: direct equity investment into a business OR through a USCIS designated “Regional Center.”

Employer Sponsor Required?

EB-1-A Nopermits the applicant to self-sponsor for a green card.  

 

EB-1-B and EB-1-C Yes, require an employer sponsor

The National Interest Waiver permits the applicant to self-sponsor for a green card

 

However, EB-3 applicants using the PERM process must do so through an employer sponsor.  The employer must pay ALL costs associated with the PERM process including legal and recruitment fees.

PERM requires an employer sponsor.

PERM requires an employer sponsor.  The employer must pay ALL costs associated with the PERM process including legal and recruitment fees.

No, the EB-5 permits the applicant to self-sponsor for a green card.

Investment Required?

No.

No.

No.

Yes.  The investment amount will be either $1 million or $500,000 if the project can demonstrate that it is located in either a rural or an economically distressed area of high unemployment.

Conditional Green Card Issued?

No.

No.

No.

Yes. Within 90 days of the two year anniversary of receiving the green card investors must file an I-829 petition to demonstrate that they have sustained their investment and that at least ten jobs were created as a result of that investment.

Allows Applicant to live and work anywhere in the U.S.?

Yes, for EB-1-A because it is self-sponsored.

 

No, for EB-1-B and EB-1-C since they are tied to the position for which they are sponsored.

No.

No.

Yes, although if an investor is actively    involved in the management or participation of the investment business they will need to be able to demonstrate that they are fulfilling that role.

Backlogged?

No.

Only for Chinese and Indian nationals.

Yes, for all nationalities.

No, although Chinese applicants may experience retrogression starting as early as June 2013.

Allows for Dependent Spouses and Children Under 21 to Derive Green Card Benefit?

Yes

Yes

Yes

Yes

How Many Stages is the Application Process?

2 stage process.  First, an I-140, Immigrant Petition must be filed with USCIS and second, the green card application either through an I-485, Application for Adjustment of Status for applicants in the U.S.  or for applicants outside the U.S., they must process at a U.S. Embassy or Consulate abroad by filing paperwork with the National Visa Center.

 

 

For National Interest Waiver applicants the process is two stages:  First, an I-140, Immigrant Petition must be filed with USCIS and second an I-485, Application for Adjustment of Status for applicants in the U.S.  Applicants outside the U.S. must process at a U.S. Embassy or Consulate abroad by filing paperwork with the National Visa Center.

 

For PERM applicants the process is 3 stages.   A PERM application is filed with the Department of Labor upon the conclusion of the employer’s recruitment efforts, only once the PERM application is certified can applicants file their I-140 and subsequent green card applications either through Adjustment of Status or Consular Processing.

For PERM applicants the process is 3 stages.   A PERM application is filed with the Department of Labor upon the conclusion of the employer’s recruitment efforts, only once the PERM application is certified can applicants file their I-140 and subsequent green card applications either through Adjustment of Status or Consular Processing.

2 stage process.  First, an I-526 Immigrant Petition for Alien Entrepreneur must be filed with USCIS and second the green card application either through an I-485, Application for Adjustment of Status for applicants in the U.S.  or for applicants outside the U.S., they must process at a U.S. Embassy or Consulate abroad by filing paperwork with the National Visa Center.

 

Two Week Premium Processing of Immigrant Petition Available?

Only for EB-1-A and EB-1-B.

Yes

Yes

No

Is Concurrent Filing of Immigrant Petition and Adjustment of Status (for aliens in the U.S.) permitted?

Yes

Applicants from all countries may concurrently file with the exception of India and China whose priority dates are not current.

No, because category is not current for nationals from any country.

No.

 

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