Employment-Based Immigration

Overview

Each year, the United States welcomes tens of thousands of new immigrants who qualify for permanent residency in 1 of 5 employment-based immigration categories. US employers, who are the “petitioners”, “sponsor” these foreigners (“beneficiaries”), who are either foreign-based employees of the American company or new employees. As one might imagine, the demand for these visas, especially in the Employment Third Preference category, is high

140,000 immigrant visas are issued for employment-based categories annually.  The qualifications and documentation required for these visas varies greatly, and the process can be quite complex and involve countless forms of documentation. Further, missing or insufficient evidence can result in a “Request for Further Evidence” notice from the USCIS, thus further delaying a beneficiary’s petition and potentially resulting in a visa denial.

Generally, an individual intending to move to the United States permanently under the employment-based immigration categories needs to have their employer, prospective employer, or agent file Form I-140, Immigrant Petition for Alien Worker with the USCIS.  For the second and third employment-based categories, a prerequisite to filing a petition with the USCIS is the approval of “alien labor certification” issued by the US Department of Labor through their iCERT system. The principle reason for requiring a labor certification is to ensure that the job being offered to the alien is one where there are no suitably qualified US workers who are willing to take the prospective job.

Take a moment to read through the various categories of employment-based immigration visas. If you have any questions or would like to schedule a consultation, please contact us.

Categories

The five employment-based immigration categories are:

1. Employment First Preference: Priority Workers - 28.6 percent (40,000) of the yearly worldwide limit of employment-based immigrant visas.

  1. Persons with extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in their fields of expertise. Under USCIS requirements, evidence of this ability must consist of an internationally recognized award, such as a Noble Peace Prize, Academy Award, or other noteworthy achievements such as publications, serving as a judge of the work of others, or commanding a high salary.
  2. Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. Applicants in this category must be coming to the U.S. to pursue tenure, tenure track teaching, or a comparable research position at a university or other institution of higher education.
  3. Multinational managers or executives who have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant’s employment outside of the U.S. must have been in a managerial or executive capacity, and the applicant must be coming to work in a managerial or executive capacity.
2. Employment Second Preference: Professionals Holding Advanced Degrees and Persons of Exceptional Ability - 28.6 percent (40,000) of the yearly worldwide limit of employment-based immigrant visas, plus any unused from the First Preference.
  1. Professionals holding an advanced degree (beyond a bachelors degree, such as a Masters degree) or a bachelors degree and at least five years progressive experience in the profession.
  2. Persons with exceptional ability in the sciences, arts, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

3. Employment Third Preference: Skilled Workers, Professionals, and Unskilled Workers (Other Workers) - 28.6 percent (40,000) of the yearly worldwide limit of employment-based immigrant visas, plus any unused from the First and Second Preferences.

  1. Skilled workers are persons whose jobs require a minimum of 2 years training or work experience that are not temporary or seasonal.
  2. Professionals are members of the professions whose jobs require at least a bachelors degree from a U.S. university or college or a foreign equivalent degree.
  3. Unskilled workers (Other workers) are persons capable of filling positions that require less than two years training or experience that are not temporary or seasonal.

4. Employment Fourth Preference: Certain Special Immigrants – 7.1% of the worldwide visa limit. (10,000)

This category includes individuals who fall into a number of  various categories such as religious workers, certain medical doctors, employees of the US Mission in Hong Kong, and Iraqi and Afghan Nationals who have worked for the US for (generally) at least one year, to name a few.

5. Employment Fifth Preference: Immigrant Investors - 7.1% of the worldwide visa limit (10,000)

This category includes foreign investors who invest at least $500,000 or $1,000,000 (depending on the geographic area) in a commercial US enterprise and create at least 10 new jobs for US workers.

  1. Targeted Employment Areas: Investors need $500,000 of capital and need to invest this into designated or “targeted” employment areas, typically rural or high unemployment locations.
  2. High Employment Areas: Investors need to invest $1,000,000 of capital in other “high employment” areas.

The above is provided for informational purposes only. As you can imagine, each category has its own unique, rigid set of requirements and procedures that must be followed in most circumstances.  There are plenty of exceptions to these rules too and If you would like to learn more, contact this office for a consultation.