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Overview of Employment Based Immigration

Employment based immigration offers foreign nationals the opportunity to become U.S. permanent residents (also known s green card holders). Many of the employment based options require the sponsorship of a U.S. employer.  The sponsoring employer must intend to hire the foreign national on a long-term basis. However, there are two employment based categories, including  the EB-1 (Extraordinary Ability) and the EB-2 (National Interest Waiver) in which a foreign national may self sponsor.

Many employment based cases require a three step process in order for the foreign national to become a permanent resident. The first step in the process, in cases where sponsorship is required, the sponsoring employer must obtain a PERM labor certification approval through the U.S. Department of Labor. The second step is the filing of an immigrant petition with the USCIS by the employer. The third step requires the foreign national to apply either for adjustment of status to permanent residence or for consular processing for an immigrant visa, based upon approval of the first two steps.

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 the submission of USCIS Form I-140. The following is a general introduction to the five preference categories.

I. First Preference EB-1: Extraordinary Ability, Outstanding Professors, Executives

There are three sub-groups in this category:

1.) EB-1(a): Persons of “extraordinary ability” in the sciences, arts, education, business, and athletics. To qualify as “extraordinary”, applicants in this category must submit extensive documentation demonstrating sustained national or international acclaim and recognition in their field of expertise. Such applicants do not require a sponsoring employer nor do they have to have a specific job offer, so long as they are entering the U.S. to continue work in the field for which they are recognized to have extraordinary ability. Also, a labor certification is also not required. The applicant may self sponsor his or her own petition. Some examples of foreign nationals that may qualify under this category are medical researchers, a professor of Engineering, a renowned soccer player, a software developer who has a PhD.and has been responsible for state-of-the-art innovations that have significantly advanced the field as a whole.

2.) EB-1(b): Outstanding Professors and Researchers. To qualify as an “outstanding” professor or researcher, the applicant must have at least three years’ experience in teaching or research, and must be recognized internationally as having outstanding academic achievements in his or her field of expertise. No labor certification is required for this classification, but the prospective employer, universities or private employers that have established research departments with at least three full-time employees dedicated to research activities, must provide a job offer and serve as the petitioner in the I-140 petition.

3.) EB-1(c): Certain executives and managers subject to an international transfer to the United States. The applicant must have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of a U.S. employer. The applicant must be coming to work in a managerial or executive capacity andthe executive or high-level manager must be responsible for directing the company or an important department of the enterprise. 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.

For more information about qualifying for permanent residence under the first employment-based preference, please review EB-1.

II. Second Preference EB-2: Advanced Degree Professionals; Or Exceptional Ability

There are two subgroups within the EB-2 category:

1.)  EB-2(a) Professionals holding an advanced degree(s) (beyond a baccalaureate degree) or a baccalaureate degree and at least five years’ progressive experience in the profession.

2.) EB-2(b) 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. PERM Labor Certification and a job offer are required for this category unless the job offer is waived by the USCIS in the national interest, the job fits in a Schedule A designation, or the alien establishes that he or she qualifies for one of the deficient occupations in the Labor Market Information Pilot Program.

In case there is no exemption for the labor certification process, the U.S. employer must file a Form I-140 petition based on an approved labor certification on the foreign national’s  behalf. Regarding I-140 petitions with a request for a national interest waiver, the foreign national may file the petition along with evidence showing his or her immigration is in the national interest. The National Interest Waiver has become a very popular and important path for many foreign nationals applying for employment based immigrant visas in the second preference. Consult our experienced immigration attorneys on national interest waiver issues.

For more information about qualifying for permanent residence under the second employment-based preference and national interest waivers, please review EB-2.

III. Third Preference EB-3: Skilled Workers

The are three subgroups within this category:

1.) Skilled Workers are persons capable of performing a job requiring at least two years’ training or experience. You must be performing work for which qualified workers are not available in the United States

2.) Professionals with a baccalaureate degree are members of a profession with at least a university bachelor’s degree or foreign equivalent. A baccalaureate degree must be required for entry into the occupation you are seeking to be employed. You must be performing work for which qualified workers are not available in the United States. Other education and experience cannot be substituted for the bachelor’s degree requirement.

3.) Other workers are those persons capable of filling positions requiring less than two years’ training or experience. There are 10,00 visas a year allotted for unskilled workers.

All Third Preference applicants require an approved I-140 petition filed by the prospective employer. All such workers require labor certification. For more information about qualifying for permanent residence under the third employment-based preference, please review EB-3.

IV. Fourth Preference EB-4

There are eleven subgroups within the EB-4 special immigrant visa category:

1.) Religious workers;

2.) Broadcasters;

3.)Iraqi/Afghan Translators ;

4.) Physicians;

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

6.) Former employees of the Panama Canal Company;

7.) Retired employees of international organizations;

8.) Certain dependents of international organization employees;

9.) Retired NATO-6 employees;

1o.) Spouses and Children of Deceased Nato-6 employees; and

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

All special immigrant 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. For more information about qualifying for permanent residence under the third employment-based preference, please review EB-4.

V. Fifth Preference EB-5 (Investor Based Visa)

The United States of America offers potential foreign national investors the opportunity to become permanent residents through foreign direct investment. The EB-5 permanent residency through  investment  program promotes foreign direct investment, job creation, and economic growth and development. All EB-5 investor applicants must file a Form I-526, Immigrant Petition by an Alien Entrepreneur. To qualify, an alien must invest a minimum of either U.S. $500,000 or $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. Instead of investing a new commercial enterprise and directly creating 10 new jobs, the investor may invest in a “regional center”  which invests the funds in approved capital investment projects in industries such as: business and professional services, manufacturing, hospitality, real estate, health services, financial services, educational services, and other industries. Investment though a regional center allows the investor to create jobs indirectly rather than directly using the regional centers approved job creation formula.

For more information on the EB-5 Immigrant Investor Visa Program, please review EB-5.

Below are certain special issues regarding employment-based immigration:

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. For the latest priority dates, call (202) 663-1541, or check the U.S. Department of State Visa Bulletin. 

For more information on Employment Immigrant Visas visit the U.S. Dept. of State.

How Subhan Law Office, LLC, Can Help You

We will assist you with reviewing which visa is most appropriate for your circumstances, advise on the  labor certification process, draft and prepare the I-140, counsel you on adjustment of status to permanent resident, or assist with consular processing at a U.S. consulate or embassy abroad. Call Subhan Law Office, LLC, today for a free legal consultation at 414-223-5718 or toll free 1-855-946-6848.