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Employment Based Immigration
Employment-Based Permanent Residence Petitions
The Immigration and Nationality Act provides 140,000 employment-based immigrant visas yearly. These available visas are divided among five preference categories. Most employment-based permanent residence petitions require submission of a USCIS form I-140. The following is a general introduction of the five preference categories.
1. The First Employment-based Preference for "priority workers"(EB-1)
Priority Workers receive 28.6 percent of the annual worldwide limit (about
40,000 visas). All Priority Workers must be the beneficiaries of an approved
Form I-140, Immigrant Petition for Foreign Workers.
There are three sub-groups in this category:
• Outstanding professors and researchers. To qualify as an Outstanding professor/researcher, the applicant must have at least three years experience in teaching or research and must be recognized internationally as outstanding in his/her field of endeavor. No labor certification is required for this classification, but the prospective employer (universities or private employers that have established research departments) must provide a job offer and serve as the petitioner in the I-140 petition.
• Certain executives and managers subject to an international transfer to the United States. The applicant must 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 serve as the petitioner in the I-140 petition.
• What is Schedule A Designation?
The Department of Labor has made a schedule of occupations for which it delegates authority to the USCIS 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 along with the I-140 petition.
• What is Labor Market Information Pilot Program?
The Immigration Act of 1990 provides for the DOL to establish a Labor Market Information Pilot Program that will define up to ten occupational classifications in which there are labor shortages. For aliens within a listed shortage occupation, a labor certification will be deemed to have been issued for purposes of an employment-based immigrant petition.
• What is the priority date and how does it affect petitions in different preferences?
The filing date of a petition is the applicant's priority date. 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 the preference the petitions were filed until the numerical limit for that category is reached. An immigrant visa cannot be issued until an applicant's priority date is reached. In certain heavily oversubscribed categories like EB-3, there may be a waiting period of several years before a priority date is reached.
There are two subgroups within this category: Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession; and Persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field. This preference receives 28.6 percent of the yearly worldwide limit (about 40,000 annual visas, plus any unused Employment First Preference visas.) A labor Certification and a job offer are required for this category unless the job offer is waived by the USCIS in the national interest, or the job fits in a Schedule A designation, or establishes that they qualify for one of the deficient occupations in the Labor Market Information Pilot Program (later).
• Regarding I-140 petitions with a request for a national interest waiver, the alien may file the petition, Form I-140, along with evidence of the national interest. National Interest Waiver has become a very popular and important path for many people applying employment-based immigrant visa in the second preference.
This category covers Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers. The Third Employment-based preference receives 28.6 percent of the yearly worldwide limit (about 40,000 annual visas), plus any unused Employment First and Second Preference visas. Only 10,000 visas of the annual quota may be assigned to unskilled workers. 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, or evidence that they qualify for one of the deficient occupations in the Labor Market Information Pilot Program. There are three subgroups within this category:
• Professionals with a baccalaureate degree: members of a profession with at least a university bachelor's degree; and
• Other workers: those persons capable of filling positions requiring less than two years' training or experience.
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. Among the types of individuals who qualify under this preference are:
• Certain overseas employees of the U.S. Government;
• Former employees of the Panama Canal Company;
• Retired employees of international organizations;
• Certain dependents of international organization employees; and
• Certain members of the U.S. Armed Forces.
Employment Creation Investors receive 7.1 percent of the yearly worldwide limit. All applicants must file a Form I-526, Immigrant Petition by an Alien Entrepreneur. 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.
Below are certain special issues regarding employment-based immigration:
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Please note that any information contained on this entire web site shall not be construed as rendering legal advice to any individual on his/her case or situation. Any responses or information is merely intended to be of general character and must not be relied upon for any specific situation. For legal advise, kindly consult with an experienced immigration attorney.
