EMPLOYMENT-BASED VISAS

The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas which are divided among the preference categories. They may require a labor certification from the U.S. Department of Labor (DOL), and the filing of a petition with the Immigration and Naturalization Service (INS).

CATEGORIES

Employment First Preference (EB1)

Priority Workers receive 28.6 percent of the yearly worldwide limit. All Priority Workers must be the beneficiaries of an approved Form I- 140, Immigrant Petition for Foreign Worker, filed with INS. Within this preference there are three sub-groups:

Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. Such applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. Such applicants can file their own petition with the INS, rather than through an employer;

Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the INS; and

Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the INS.

Employment Second Preference (EB2)

Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Sciences, or Business receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First Preference visas.

Second Preference applicants must either have a labor certification approved by the DOL, or Schedule A designation, or establish that they qualify for a "waiver" of the labor certification requirement as a person whose immigration would be in the national interest of the United States ("NIW" or National Interest Waiver). The CIS standard for an NIW is quite demanding (see adjoining column for a link to their precedent decision on this standard). A job offer is usually required and usually the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the alien may file the petition, Form I-140, along with evidence of the national interest.

Employment Third Preference (EB3)

Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First and Second Preference visas. All Third Preference applicants require an approved I-140 petition filed by the prospective employer. All such workers require a labor certification, or Schedule A designation.  There are three subgroups within this category:

Skilled workers are persons capable of performing a job requiring at least two years' training or experience;

Professionals with a baccalaureate degree are members of a profession with at least a university bachelor's degree; and

Other workers are those persons capable of filling positions requiring less than two years' training or experience.

Employment Fourth Preference (EB4)

Special Immigrants receive 7.1 percent of the yearly worldwide limit. All such applicants must be the beneficiary of an approved I-360, Petition for Special Immigrant, except overseas employees of the U.S. Government who must use Form DS-1884. There are six subgroups:

1) Religious workers coming to carry on the vocation of a minister of religion, or to work in a professional capacity in a religious vocation, or to work for a tax-exempt organization affiliated with a religious denomination;

2) Certain overseas employees of the U.S. Government;

3) Former employees of the Panama Canal Company;

4) Retired employees of international organizations;

5) Certain dependents of international organization employees; and

6) Certain members of the U.S. Armed Forces.

Employment Fifth Preference (EB5)

Employment Creation Investors receive 7.1 percent of the yearly worldwide limit. All applicants must file a Form I-526, Immigrant Petition by Alien Entrepreneur, with the INS. To qualify, an alien must invest between U.S. $500,000 and $1,000,000, depending on the employment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.

LABOR CERTIFICATION

A person whose occupation requires a labor certification must have prearranged employment in the United States.

Individual Labor Certification

The  prospective employer must complete the online PERM labor certification process, satisfying the U.S. Department of Labor that it has recruited for the job and has been unable to find a qualified U.S. worker to fill the position.

Schedule A Designation

The Department of Labor has made a schedule of occupations for which it delegates authority to the INS to approve labor certifications. Schedule A, Group I, includes physical therapists and nurses. Schedule A, Group II includes aliens of exceptional ability in the sciences and arts (except performing arts). To apply for Schedule A designation, the employer must submit a completed, uncertified Form ETA-750 in duplicate to the INS along with the I-140 petition.

PETITION

All intending immigrants who plan to base their immigrant visa application on employment in the United States must obtain an approved immigrant visa petition from the INS. If a necessary labor certification is granted, the employer may then file a Form I-140, Petition for Prospective Immigrant Employee, with the INS for the appropriate employment-based preference category.

Numerical Limitations

Whenever there are more qualified applicants for a category than there are available numbers, the category will be considered oversubscribed, and immigrant visas will be issued in the chronological order in which the petitions were filed until the numerical limit for the category is reached. The filing date of a petition becomes the applicant's priority date. Immigrant visas cannot be issued until an applicant's priority date is reached. In certain heavily oversubscribed categories (particularly the EB3 category), there may be a waiting period of several years before a priority date is reached. For the latest priority dates, see the Department of State Visa Bulletin web site.

Visa Bulletin Tracking

Our office maintains an in-house database, to track each client's progress on the Visa Bulletin waiting list as the list is updated each month, so we know when each client's wait will be ready to be finished.