Permanent Visas

 

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
The qualifying criteria for this category are very similar to those of the O-1 nonimmigrant and is reserved for noncitizens of "extraordinary ability" in the sciences, arts, education, business, or athletics. For those noncitizens who do qualify, no offer of employment is necessary but the noncitizen does need to show that s/he intends to pursue work in her/his area of expertise in the U.S.

Example of EB-1-1 positions/situations:

  • Top athlete in foreign professional league.
  • Top amateur athlete in foreign or world rankings.
  • Nobel Prize Winner.
  • Scientist who discovers new trend, treatment, or cure.
  • Academy Award winning actor, director, or producer.
  • World-renowned artist.
EB-1-2: Outstanding Researchers and Professors
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

  • Award-winning or highly published Professor at a foreign Undergraduate, Graduate, Medical, or Law School.
  • Renowned Scientist or Lab technician for Pharmaceutical, Technical, Chemical, or Energy company.
  • Grammy nominated music professor.
EB-1-3: Multinational Manager/Executive
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:

  • CEOs and CFO's.
  • Corporate Executives.
  • Regional Managers.
  • Division Presidents
  • Board of Director Members.
  • Human Resources or Personnel Directors.
  • Production and Logistics Managers
  • International Marketing Directors
  • Professionals Who Manage Professionals

 


 

Second Employment-Based Preference Level

EB-2 Category: Exceptional Workers
This high priority employment-based preference does require both a job offer form a U.S. employer and a labor certification for the process to begin and is limited to 40,000 visas per year or 28.6% of worldwide visas plus unused first preference. This preference level is broken into two subcategories:

EB-2-1: Noncitizens of Exceptional Ability
Noncitizens who can demonstrate exceptional ability in the arts, sciences, or business qualify for this category within the second employment-based preference level. "Exceptional ability" is defined as a degree of expertise significantly above that ordinarily encountered. The "arts" has been construed to include athletes and entertainers. Applicant must have a job offer and labor certification in this category unless subject to a waiver. The INS regulations allow a waiver for the labor certification and job offer requirements when it can be shown that such a waiver would benefit the "national interest" of the United States.

Examples of EB-2-1 positions/situations

  • Recognizable musical group, entertainer, or artist.
  • Professional athlete.
  • "Ranked" Amateur athlete.
  • Renowned scientist or researcher.
EB-2-2: Noncitizens holding Advanced Professional Degrees
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

  • Physicians.
  • Attorneys.
  • Upper-level Engineers, Accountants, and Scientists.
  • Upper-level Computer/Technology professionals
  • Principals and Superintendents of Schools.
  • Education Specialists, e.g., speech pathologist.
  • Dentists.

 


 

Third Employment-Based Preference Level

EB-3 Category: Professional, Skilled, and Other Workers
This intermediate priority employment-based preference does require an approved labor certification and a job offer from a U.S. employer for the process to begin and is limited to 40,000 visas per year or 28.6% of worldwide visas plus unused first and second preference. For all third preference categories, a labor certification is needed. This preference level is broken into the following three subcategories distinguished by what requirements, as certified by the Department of Labor (DOL), are necessary for the position:

EB-3-1: Noncitizen Professionals with Bachelor's Degrees
The INS regulations limit this category exclusively to professionals with an bachelor's degree from an accredited U.S. institution or the foreign equivalent thereof. The noncitizen must establish that he or she has the required degree, the occupation the noncitizen will hold requires such a degree, and that the noncitizen is a member of that profession. The definition of "professional" is generally regarded as being the same as that used for H-1 a nonimmigrant. This category is generally for professionals who do not qualify as an advanced degree professional due to a lack of experience.

Examples of EB-3-1 positions/situations

  • Teachers.
  • Entry-level Accountants, Engineers, Chemists, Journalists, etc.
  • Entry-level Managers
  • Occupational and Physical Therapists.
EB-3-2: Noncitizen Skilled Workers
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:

  • Paralegals.
  • Registered Nurses.
  • Teaching Assistants.
  • Shipfitters and Marine Welders.
  • Divers.
  • Ship Captains and Mates.
  • Chefs.
  • Butlers.
  • Supervisors.
EB-3-3: Noncitizen Unskilled Workers
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

  • Field hands, highway clean-up crews, trash collector, etc.
  • General labor positions.

 


 

Fourth Employment-Based Preference Level

EB-4 Category: "Special Immigrants"
The fourth employment-based preference is limited to certain "special workers," such as religious workers. This category is limited to 7.1% of worldwide visas per year with a 5,000 limitation on religious workers. Special immigrants may petition without an employer.

Examples of EB-4 positions/situations

  • Minister, priest, pastor, rabbi, or other members of the clergy.
  • Monk or nun.
  • Panama Canal Treaty employees.
  • Foreign medical graduates who entered the U.S. on H or J visa.
  • Retired G-4 officer who has maintained a G-4 or N status and who applies within 6 months of retirement.
  • Court Dependents.
  • Person who served honorably for 12 years in armed services on active duty.

 


 

Fifth Employment-Based Preference Level

EB-5 Category: Employment Creation (Investors)
This preference is set aside for noncitizen investors in new commercial enterprises and is "capped" at 10,0 00 visas per year or 7.1% of worldwide visas per year of which 3,000 are set aside for "targeted employment areas." This preference is generally not regarded as a "job-offer" preference because qualification within this preference is based on the amount of investment and the role of participation by the noncitizen in the investment. Hence, there is no labor certification required for this preference level. To qualify, the noncitizen must invest or be actively in the process of investing at least $500,000 in the enterprise for "targeted employment areas" and from $1 million up to $3 million for "high employment areas."

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"
At least 3,000 of the 10,000 total visas for this preference level must be designated to this category. A "targeted employment area" is defined to include rural areas (those outside of metropolitan statistical areas or outside a city or town with at least 20,000 people) or areas which are experiencing high unemployment of at least 150% of the national average.

EB-5-2: Noncitizens who invest in other employment areas
To qualify, the noncitizen must invest or be actively in the process of investing at least $1 million and up to as much as $3 million for "high employment areas," i.e., metropolitan statistical areas (mostly urban areas) with an unemployment rate significantly below the national average.

Examples of EB-5 positions or situations:
  • Trader in goods, tangible commodities or merchandise having intrinsic value, and/or services, such as banking, insurance, transportation, communications and data processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer.
  • Person who develops and directs a Commercial Enterprise that does not involve a passive investment (e.g., stocks, undeveloped land).
  • Person who develops land (e.g., builds a casino or resort).