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| Employment Based(EB) |
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| An American employer can sponsor aliens for permanent residence in the United States.
Approximately 140,000 employment-based permanent residency visas are granted each year.
Generally, the alien is sponsored to fill a specific employment position for which the
employer is unable to find an American or permanent resident to fill. (A General
Information letter and Application is attached at Appendix "D"). These positions
are specialty occupations requiring skilled individuals. There are three employment-based
categories; each allotted 40,000 visas a year, which have differing requirements: |
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FIRST EMPLOYMENT-BASED PREFERENCE
(Priority workers)
The first preference category does not require labor certification for the position the
alien is going to fill. This category is open to:
- Managers and executives subject of international transfer
to the United States.
- Outstanding professors and researchers with universities
or employers with established research departments.
- Aliens of "extraordinary ability" in the
sciences, arts, education, business, and athletics. Note, this category does not require
an employment offer. It is explained in detail at the end of this section.
SECOND EMPLOYMENT-BASED PREFERENCE
The second preference requires a labor certification for the position the alien seeks to
fill. This can be waived in certain circumstances in the national interest (i.e. medical
doctors who will work in medically under served areas). This category is open to the
following:
- Aliens of "exceptional ability" in sciences,
arts, or business. A National Interest Waiver may be obtained in this category as
described on page XX.
- Advanced-degree professionals
THIRD EMPLOYMENT-BASED PREFERENCE
The third preference also requires a labor certification for the position the alien seeks
to fill. This category is open to the following:
- Professionals with bachelor's degrees not qualifying in
the second preference
- Skilled workers (filling positions requiring at least two
years of training and experience
- Unskilled workers (only 10,000 visas per year).
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| Requirements |
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LABOR CERTIFICATION
In second and third preference cases, the employer must first get a certification from the
Department of Labor that qualified U.S. workers have been recruited for the position and
are unavailable. There are strict Department of Labor guidelines, which must be adhered to
for the issuance of a labor certification. This process can take up to sixteen months.
EMPLOYMENT
The employer must be offering the alien a "Permanent position". Moreover, the
employer must be able to demonstrate that they have the ability to pay the alien's salary.
The alien must be able to demonstrate that he has the requisite qualifications for the job
at the time the papers are initially filed. Accordingly, the employer must verify that the
alien has the credentials to meet the minimum requirements for the offered position prior
to the filing of the labor certification application. |
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| Information |
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APPLICATION
The employer at an Immigration and Naturalization Service Center files the petition in the
United States. The following documentation is required when filing the petition:
- INS Form I-140 Immigrant Petition for Alien Worker
- Labor Certification - if second or third preference case
requiring labor certification, one of the following must be provide:
Approved Labor Certification from Department of Labor (Form ETA
7145B, Final determination) and original application (Form ETA 750, parts A, B and
attachments), [please see Appendix "D" for procedure to get labor certification]
OR2) Form ETA 750, Parts A and B, in duplicate and uncertified by DOL, and supporting
documentation showing eligibility for pre certification under Schedule A, OR3) Form ETA
750, Part B, in duplicate and uncertified, and documentation showing waiver of job offer
and labor certification requirement in national interest.
- Employer's letter supporting petition and supporting
documentation regarding ability to pay.
- Supporting documentation required for that preference.
- Supporting documentation that alien meets the job
requirements (i.e. degrees, experience letters etc.).
- Filing fee ($75)
ALIENS OF EXTRAORDINARY ABILITY
Congress has designated those groups to which it gives preference in immigrating to the
United States. An Alien of Extraordinary Ability in the sciences, arts, education,
business, or athletics is included within this preference category. This ability must be
demonstrated through sustained national or international acclaim, and the alien must have
achievements recognized in the field through extensive documentation.
A specific job offer is not required for an alien in this
group, as long as the alien is entering the United States to continue work in the field in
which he or she has extraordinary ability. Therefore the alien may file his/her own
petition with the INS for classification in this preference, rather than having the
petition filed by an employer. In the INS regulations, "extraordinary ability"
is defined as a "level of expertise indicating that the individual is one of those
few who have risen to the top of the field of endeavor."
The crucial aspect of an INS petition for an
extraordinary ability alien is the documentation required to establish such ability. The
INS rules permit the alien to establish extraordinary ability by evidence of receipt of a
major, internationally recognized award, such as a Nobel Prize or an Academy Award. Absent
receipt of such an award, the alien must include at least three types of evidence from the
following list:
- Documentation of receipt of lesser nationally or
internationally recognized prizes or awards for excellence in the field of endeavor;
- Documentation of membership in associations in the field
of endeavor, which require outstanding achievements of their members, as, judged by
recognized national or international experts in the field.
- Published material in professional or major trade
publications or major media about the alien and relating to the alien's work in the field
of endeavor;
- Evidence of participation, on a panel or individually, as
a judge of the work of others in the same field of specialization;
- Evidence of original scientific, scholarly, or artistic
contributions of major significance in the field of endeavor;
- Evidence of authorship of scholarly articles in the field,
in professional journals or other media;
- Evidence of the display of work in the field at artistic
exhibitions or showcases in more than one country;
- Evidence of performance in a lead, starring, or critical
role for organizations or establishments with distinguished reputations;
- Evidence of having commanded a high salary or other
significantly higher re numeration for services in relation to others;
- Evidence of commercial success in performing arts, as
shown by box office receipts or record, cassette, compact disk, or video sales.
The rules provide that other comparable evidence may be
submitted if the above types of evidence do not readily apply to the alien's occupation.
Although the INS rules state that the alien can document his or her extraordinary ability
by producing three types of evidence from the list of ten included in the rules, the INS
has stated that there may be circumstances in which a Service Center may require
additional evidence to document extraordinary ability even when the alien has provided
three types of evidence from the INS list. The INS must have evidence that the alien is
"one of that small percentage who have risen to the very top of his or her field of
endeavor."
EMPLOYMENT BASED NATIONAL INTEREST WAIVERS Both
professionals with advanced degrees and people with exceptional ability may seek waivers
of the job offer requirement if their immigration could be deemed in the "national
interest." Waiver of the job offer means the applicant is exempt from obtaining a
labor certification and does not need an employer in the United States to file a petition.
Since the national interest waiver is filed by the applicant, and not by the employer, it
is his or her sole property and remains valid regardless of the applicant's employment
status.
The Immigration and Naturalization Service regulations do
not define the term "national interest." The introduction to the
employment-based immigrants regulations expressly say that the term "national
interest" is flexible. In a number of AAU decisions, the INS has said that the
following criteria may be used to determine national interest, but not all of the criteria
need to be met:
- Improving the U.S. economy.
- Improving wages and working conditions of U.S. workers;
- Improving education and training programs for U.S.
children and under-qualified workers;
- Improving health care;
- Providing more affordable housing for young and/or older,
poorer U.S. residents;
- Improving the environment of the United States and making
more productive use of natural resources; or
- A request from an interested U.S. Government agency.
The more factors that an applicant may prove, the better
are his/her chances of having the petition approved. One must also show that he/she will
be working in the United States in the sciences, arts, professions or business. National
Interest does not connote benefiting the nation as a whole, a benefit to a locality is
sufficient.
FIFTH PREFERENCE (INVESTORS)
The fifth employment-based preference is set aside for alien investors in new commercial
enterprises. This category is allotted 10,000 visas per year, and generally requires that
the investor invest or be actively in the process of investing at least $1 million in the
enterprise. This figure can change depending on the area of the investment. For example,
an investment in a "targeted employment areas" may be as low as $500,000 while
"high employment areas" may require an investment as high as $3 million.
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Currently, the processing time for employment based permanent residence is approximately
12 to 24 months depending on the state the case is filed.
FAMILY BASED IMMIGRANT VISAS
A. First Preference. Unmarried sons and daughters of U.S.
citizens, and children of unmarried sons and daughters of U.S. citizens (unmarried at the
time of filling). The numerical limit from 54,000 to 23,400.
B. Second Preference. Spouses and unmarried sons and
daughters of Permanent Residents. The numerical limit from 70,200 to 114,200. IMMACT 90
allocates the 114,200 visas as follows: Spouses and children - 77% (87,934 minimum)
Unmarried sons and daughters - 23% (26,266 minimum) (also includes
children of unmarried sons and daughters)
C. Third Preference. This category was the former fourth
preference and includes married sons and daughters of citizens and their children. The
numerical limit was changed from 27,000 to 23,400.
D. Fourth Preference. This category was the former fifth
preference and includes brothers and sisters 21 years of age or over, spouses and children
of brothers and sisters of U.S. citizens and legalized aliens. The numerical limit was
changed from 64,800 to 65,600. |
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| Processing Time |
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Currently, the processing time for employment based permanent residence is approximately
12 to 24 months depending on the state the case is filed.
FAMILY BASED IMMIGRANT VISAS
A. First Preference. Unmarried sons and daughters of U.S.
citizens, and children of unmarried sons and daughters of U.S. citizens (unmarried at the
time of filling). The numerical limit from 54,000 to 23,400.
B. Second Preference. Spouses and unmarried sons and
daughters of Permanent Residents. The numerical limit from 70,200 to 114,200. IMMACT 90
allocates the 114,200 visas as follows: Spouses and children - 77% (87,934 minimum)
Unmarried sons and daughters - 23% (26,266 minimum) (also includes
children of unmarried sons and daughters)
C. Third Preference. This category was the former fourth
preference and includes married sons and daughters of citizens and their children. The
numerical limit was changed from 27,000 to 23,400.
D. Fourth Preference. This category was the former fifth
preference and includes brothers and sisters 21 years of age or over, spouses and children
of brothers and sisters of U.S. citizens and legalized aliens. The numerical limit was
changed from 64,800 to 65,600. |
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This web site is copyright© 2002, Amarnath Gowda, Law Office of Amarnath Gowda.
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