EB-5 Visa Blog

Understanding the Employment Based Immigrant Visa Preference Categories

Kate Kalmykov

The EB-5 immigrant visa is unique in that it allows an individual to self-sponsor themselves for a green card.  The investor's spouse and children under the age of 21 are also eligible to derive the immigration benefit based on the principal's investor's EB-5 investment.  Not only does the ability to self-sponsor make EB-5 an attractive option but it is an employment-based immigrant visa category with no backlog (i.e. waitlist for green cards).  Employment based immigration to the U.S. is subject to per country limits and is divided into "preference categories." 
  • The EB-1 category which includes aliens of extraordinary ability, outstanding researchers and professors as well as multinational managers and executives is allocated 28.6% of the worldwide employment based numbers, as well as any numbers not used in the EB-4 and EB-5 categories.  The EB-1 category is rarely backlogged.
  • The EB-2 category includes 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).  The EB-2 category is also allocated 28.6% of the worldwide employment based numbers, plus any numbers not used in the EB-1 category.  
  • The EB-3 category includes professionals with Bachelors' degrees, and skilled workers with a minimum of two years of training.  EB-3 is allocated 28.6% of the worldwide level, plus any numbers not used in EB-2 and EB-3.
  • The EB-4 category is for special immigrants, principally religious workers and is allocated 7.1% of the worldwide level.
  • The EB-5 category is for immigrant investors and is allocated 7.1% of the worldwide level for a total of 10,000 visas.  3,000 of the EB-5 based visas are expressly reserved for investors who make their investments into targeted employment areas (TEAs)- areas that are rural of have experienced high unemployment and are economically distressed.  Likewise, 3,000 visas are set aside for investors in regional centers.  Although, USCIS has on numerous occasions indicated that regional centers can use immigrant visas that remain in the EB-5 category.  To date, the EB-5 category has never been backlogged because demand has not exceeded availability.
The Department of State Visa office is charged with the distribution of immigrant visas.  To ensure that this is done fairly, the Visa Office allocates green cards according to the preference category and the date the petition was filed, known as a "priority date."  Because of visa backlogs, an individual's priority date is of critical importance. Since 2005, there has been a multi-year backlog for all foreign nationals applying under the employment based third preference (EB-3), and for Chinese and Indian nationals applying under the employment based second preference (EB-2).  For this reason, many investors, particularly from China, are turning to the EB-5 as a way to avoid these lengthy quotas and obtain a green card through the EB-5 program.