Permanent Visas
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Employment Based Preferences There are five (5) categories of employment preferences through which the alien can seek to immigrate. Employment-based preferences are subject to numerical limitations; however, most employment-based preferences are not heavily backlogged thereby providing employers with viable opportunities to recruit noncitizen personnel. Employment based cases generally follow a three-step process, except in some circumstances, where an approved permanent labor certification from the Department of Labor (DOL) is not needed to file the initial petition with the INS. There are a number of immigrant visa categories that are exempt from the labor certification requirement. In a nutshell, these categories are for world renowned individuals, "outstanding" researchers and professors, aliens of exceptional ability or holding advanced degrees whose work will benefit the "public interest" of the U.S., managers/executives of multinational corporations and Schedule A registered nurses and physical therapists. Generally, a young person who is near entry level in his career is simply not able to utilize any of these categories, at least until his career has developed quite substantially. Generally, during the labor certification, process, the employer is required to conduct a supervised recruitment and prove to the satisfaction of the DOL that a minimally qualified U.S. worker cannot be located and secured for the position being offered the noncitizen. New INS regulations provide for a quicker process known as a Reduction in Recruitment (RIR). RIR is a method whereby a qualifying employer may be able to obtain labor certification from the DOL without having to conduct a post-filing DOL-supervised recruitment process. To qualify for this procedure, the employer must meet several qualifications including establishing that it has tested the labor market for the previous six months through advertising and other methods of recruitment. This recent development in the Alien Labor Certification process may offer opportunities for new strategies in obtaining Lawful Permanent Residence (LPR or "green card") for alien employees and prospective employees.
First Employment-Based Preference Level EB-1 Category: Priority Workers This highest priority employment-based preference does NOT require a labor certification for the process to begin and is "capped" at 28.6% or 40,000 visas per year. This preference level is broken into three subcategories:
EB-1-1: Noncitizens with Extraordinary Ability
Example of EB-1-1 positions/situations:
In order to qualify for this sub-preference, the alien must be recognized internationally as outstanding in a specific academic area and have 3 years experience in teaching or research in the academic area. Further, the alien must have an offer of employment from a university or private employer with an "established research department" for a tenure (or tenure track) teaching position or a comparable position at university or institute of higher education to conduct research; or a comparable position to conduct research with private employer if it employs at least 3 persons full-time in research activities and the departmental division or institution has achieved documented accomplishments in an academic field. Example of EB-1-2 positions/situations:
Like the L-1A nonimmigrant intracompany transferee, the requirements of corporate affiliation and one year of managerial or executive capacity employment are present. The multinational manager noncitizen must control an essential function of the company's affiliate in question in order to qualify for this immigrant classification. A specialized knowledge nonimmigrant, i.e., a noncitizen with L-1B status, does not qualify for this employment-based immigrant status option. The alien must be employed for 1 year (in last 3 years) by "firm or corporation or other legal entity or an affiliate or subsidiary thereof." The alien must seek to enter U.S. in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive. Example of EB-1-3 positions/situations:
Second Employment-Based Preference Level EB-2 Category: Exceptional Workers
EB-2-1: Noncitizens of Exceptional Ability Examples of EB-2-1 positions/situations:
Noncitizens who hold an advanced degree, or any U.S. academic or professional degree (or the foreign equivalent) above the baccalaureate level, qualify for this category. A noncitizen who holds a bachelor's degree with at least five years of experience in his or her specialty may be considered for this status as well. Further, the employment being offered to the noncitizen must require an advanced degree or a bachelor's degree plus five years of progressive experience in the field. However, if a PhD is required, the alien cannot use experience as an "equivalent," the alien must have the "actual" PhD or foreign academic equivalent. An approved Labor Certification is required in this category in order for the process to begin. Examples of EB-2-2 positions/situations:
Third Employment-Based Preference Level EB-3 Category: Professional, Skilled, and Other Workers
EB-3-1: Noncitizen Professionals with Bachelor's Degrees Examples of EB-3-1 positions/situations:
Noncitizens who are capable of performing "skilled labor," i.e., labor that requires at least two years of training or experience to perform, qualify for this status. Further, the position of employment being offered must be a full-time permanent job requiring at least two years training or experience in the noncitizens field in order to qualify the employment offer and the noncitizen for this status. Relevant post-secondary education may be considered as training. Whether a job requires two years of experience is to be determined by the DOL under specific vocational preparation guidelines and is subject to DOL approval before the labor certification may move forward. Examples of EB-3-2 positions/situations:
Noncitizens who are capable of performing "unskilled labor," i.e., labor that requires less than two years of experience or training to perform, qualify for this status. It is useful to note, however, that it is the offered position of employment that is determinative of whether the noncitizen is classified as an unskilled or skilled worker. For example, if an offer of employment requires only one year of training or experience to be performed fully as determined by the DOL and the noncitizen has three years of relevant experience in the field, then the noncitizen will only qualify for status as an unskilled worker regardless of his or her experience level. This becomes extremely vital for both the employer and the individual noncitizen to note because only 10,000 of the available 120,000 visas for the first three employment-based preference levels can be set aside for noncitizen beneficiaries in this category. This secondary numerical limitation for unskilled worker status has created an extensive backlog for those nonci tizens seeking classification in this category. Therefore, this is generally not a viable option for an employer who is seeking to hire potential employees in the immediate future. Examples of EB-3-3 positions/situations:
Fourth Employment-Based Preference Level EB-4 Category: "Special Immigrants"
Examples of EB-4 positions/situations:
Fifth Employment-Based Preference Level EB-5 Category: Employment Creation (Investors)
The enterprise itself must benefit the U.S. economy and must create full-time employment for at least ten U.S. workers who are not immediate family members of the noncitizen investor. The investment must support a "new commercial enterprise" or a "troubled business." The fifth employment-based preference level is broken into two categories:
EB-5-1: Noncitizens who invest in "Targeted Employment Areas"
EB-5-2: Noncitizens who invest in other employment areas
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