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Employment Based(EB)
Requirements | Information | Processing Time
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:
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:
  1. Managers and executives subject of international transfer to the United States.
  2. Outstanding professors and researchers with universities or employers with established research departments.
  3. 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:
  1. Aliens of "exceptional ability" in sciences, arts, or business. A National Interest Waiver may be obtained in this category as described on page XX.
  2. 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:
  1. Professionals with bachelor's degrees not qualifying in the second preference
  2. Skilled workers (filling positions requiring at least two years of training and experience
  3. Unskilled workers (only 10,000 visas per year).
Requirements
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.
Information
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:
  1. INS Form I-140 Immigrant Petition for Alien Worker
  2. 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.
  3. Employer's letter supporting petition and supporting documentation regarding ability to pay.
  4. Supporting documentation required for that preference.
  5. Supporting documentation that alien meets the job requirements (i.e. degrees, experience letters etc.).
  6. 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:
  1. Documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
  2. 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.
  3. 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;
  4. Evidence of participation, on a panel or individually, as a judge of the work of others in the same field of specialization;
  5. Evidence of original scientific, scholarly, or artistic contributions of major significance in the field of endeavor;
  6. Evidence of authorship of scholarly articles in the field, in professional journals or other media;
  7. Evidence of the display of work in the field at artistic exhibitions or showcases in more than one country;
  8. Evidence of performance in a lead, starring, or critical role for organizations or establishments with distinguished reputations;
  9. Evidence of having commanded a high salary or other significantly higher re numeration for services in relation to others;
  10. 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:

  1. Improving the U.S. economy.
  2. Improving wages and working conditions of U.S. workers;
  3. Improving education and training programs for U.S. children and under-qualified workers;
  4. Improving health care;
  5. Providing more affordable housing for young and/or older, poorer U.S. residents;
  6. Improving the environment of the United States and making more productive use of natural resources; or
  7. 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.
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.
Processing Time
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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