Employment-based Immigration

immigrantvisas

A Green Card holder or a lawful permanent resident (LPR) is any person who is admitted to the United States to reside permanently.  LPR’s have been granted permission to permanently live and work in the United States.  The two most common methods of obtaining a Green Card in the United States are (1) through a close family member or (2) through employment of a U.S. based company. Green card holders are required to file their income tax returns and report their income to the U.S. Internal Revenue Service and State IRS. A male Green Card holder, ages 18 through 25, is required to register with the Selective Service.

One of the ways a foreign national can become a permanent resident is through a permanent employment opportunity in the U.S. Spouses and minor children may accompany or follow-to-join employment-based immigrants. Employment based immigrants are divided into five preference categories.

To be considered for an immigrant visa under some of the employment-based categories below, the applicant’s prospective petitioning employer must first obtain a Labor Certification from the Department of Labor. Once received (if required), the employer then files an Immigrant Petition for Alien Worker, Form I-140, with the U.S. Citizenship and Immigration Services (USCIS) for the appropriate employment-based preference category. Once the petition is approved the beneficiary will either adjust status if in the U.S. or undergo consular processing if abroad. (See consular processing for more information).

In all, there are 5 employment-based categories (designated EB-1 through EB-5, although multiple sub categories exist in certain categories).

EB-1. Employment-based immigration, first preference (Priority Workers)

EB-2. Employment-based immigration, second preference (Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability)

EB-3. Employment-based immigration, third preference (Skilled Workers, Professionals, and Other Workers)

EB-4. Employment-based immigration, fourth preference (Certain Special Immigrants)

EB-5. Employment-based immigration, fifth preference (Employment Creation)

EB-1. Employment-based immigration, first preference (Priority Workers)

EB-1: Extraordinary Ability

  • Applicant must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim.
  • Applicant’s achievements must be recognized in your field through extensive documentation.
  • Applicant does not need a petitioning employer or an employment offer to qualify in this category.

EB-1: Outstanding Professors and Researchers

  • Applicant must demonstrate international recognition for outstanding achievements in a particular academic field.
  • Applicant must have at least 3 years experience in teaching, or research in that academic area.
  • Applicant 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.

EB-1: Multinational Manager or Executive

  • Applicant have been employed outside the U.S. in the 3 years preceding the petition for at least 1 year by a firm or corporation.
  • Applicant must be seeking to enter the United States to continue service to that firm or organization.
  • The employment must have been outside the U.S. in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.
  • Petitioning employer must provide a bona fide job offer and prove the ability to pay the applicant’s wage.

Many observers have noted that the EB-1 Multinational manager or executive category bears close similarity to a non-immigrant visa category L-1A. The L-1A visa category can be used as a starting point for the possibility of permanent hire through the EB-1 Multinational manager or executive category. For more information on the L-1A category please click here. Please request a consultation to discuss possibly strategies.

EB-2. Employment-based immigration, second preference (Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability)

EB-2: Members of the Professions Holding Advanced Degrees

  • The applicant’s position must  require an advanced degree.
  • The applicant must possess an advanced degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field).
  • Petitioning employer must provide a bona fide job offer and prove the ability to pay the applicant’s wage.
  • Petitioning employer must demonstrate that applicant will be performing work for which qualified workers are not available (See Labor Certification process below).

EB-2: Persons of Exceptional Ability

  • Applicant must show exceptional ability in the sciences, arts, or business.
  • Exceptional ability refers to a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
  • Petitioning employer must provide a bona fide job offer and prove the ability to pay the applicant’s wage.
  • Petitioning employer must demonstrate that applicant will be performing work for which qualified workers are not available in the U.S. (See Labor Certification process below).

EB-2: National Interest Waiver/Self-petitioning applicants of Exceptional Ability or Self-petitioning applicants holding advanced degrees

  • Applicant seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States.
  • Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the national interests.
  • Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them).
  • No Labor Certification is required.

EB-3. Employment-based immigration, third preference (Skilled Workers, Professionals, and Other Workers)

EB-3: Professionals

  • Applicant possesses a U.S. baccalaureate degree or a foreign degree equivalent.
  • The degree is the normal requirement for entry into the occupation.
  • Petitioner employer must demonstrate that applicant will be performing work for which qualified workers are not available in the U.S. (See Labor Certification process below).

EB-3: Skilled Worker

  • Applicant must be able to demonstrate at least 2 years of job experience or training.
  • Petitioning employer must demonstrate that applicant will be performing work for which qualified workers are not available in the U.S. (See Labor Certification process below).

Eb-3: Other workers

  • Applicant must be capable of performing unskilled labor and demonstrate that the position is not of temporary or seasonal nature.
  • Petitioner employer must demonstrate that applicant will be performing work for which qualified workers are not available in the U.S. (See Labor Certification process below).

EB-4. Employment-based immigration, fourth preference (Certain Special Immigrants)

EB-4: Religious Workers

  • An applicant is a member of a religious denomination that has a non profit religious organization in the U.S.
  • An applicant has been a member of the denomination for a minimum of two years.
  • An applicant is a priest or a minister OR
  • Is coming to work in a religious occupation for a religious organization or its non-profit affiliate.

Other Special Immigrants include:

  • Broadcasters
  • Iraqi/Afghan Translators
  • Iraqis Who Have Assisted the United States
  • International Organization Employees
  • Physicians
  • Armed Forces Members
  • Panama Canal Zone Employees
  • Retired NATO-6 employees
  • Spouses and Children of Deceased NATO-6 employees

EB-5. Employment-based immigration, fifth preference (Employment Creation)

  • Applicant must invest a minimum of $1 million into a U.S. enterprise, or a minimum of $500,000 into a Targeted Employment Area (an area of high unemployment or rural area).
  • Investment must create or preserve directly or in certain cases indirectly at least 10 full-time jobs for qualifying U.S. workers within two years.

Labor Certification

The purpose of the Labor Certification process is to protect the national interests of the United States by ensuring that the wages and working conditions of U.S. workers employed in the same field would not be adversely affected.  The Labor Certification ensures that an employer will test the labor market to make sure that at any given point there are no willing and able U.S. workers or Permanent Residents available for an open position for which Labor Certification is being sought.

Priority dates and the Visa Bulletin

The Visa Bulletin provides information regarding the cut-off dates which govern visa availability in the numerically limited visa categories and other immigrant visa related information. Once the underlying petition is approved, the visa bulletin provides guidance on when the applicant may adjust status or consular process for permanent residence in the U.S. In certain categories backlogs extend weight times to several years.