Employment-based 1st Preference
The employment-based 1st preference, also known as the priority worker
category, is divided into three groups. Preference category EB1 (1) is for
aliens with extraordinary ability. This is defined as an alien with a level of
expertise indicating that the individual is one of that small percentage who
has risen to the very top of the field of endeavor. The petition filed on
behalf of an alien of extraordinary ability must be accompanied by evidence
that the alien has sustained national or international acclaim and that his or
her achievements have been recognized in the field of expertise. The
regulations set forth the type of documentation that must be submitted as
evidence of this achievement.
Neither an offer of employment in the United States nor a labor certification
is required for this classification; however, the petition must be accompanied
by clear evidence that the alien is coming to the United States to continue
work in the area of expertise.
Preference category EB1 (2) is for those aliens who are outstanding professors
and researchers, and who have an offer of employment from a prospective
United States
employer. A labor certification is not required for this classification.
A petition for an outstanding professor or researcher must be accompanied by
evidence that the professor or researcher is recognized internationally as
outstanding in the academic field specified in the petition. The regulations
set forth what type of evidence must be submitted to meet these criteria.
The EB1 (3) category is for certain multinational executives and managers.
These are persons who have been admitted to the United States in order to work
in, and who are currently working in, managerial or executive positions with
the same international corporations or organizations with which they were continuously
employed as managers or executives outside the United States for at least one
out of the three years before they were admitted; and aliens outside of the
United States who will be engaged in the United States in managerial or
executive positions with the same international corporations or organizations
with which they have been continuously employed as managers or executives
outside the United States for at least one of the immediately preceding three
years. The terms manager and executive are more thoroughly defined in the
regulations. It should be noted that these provisions provide for a waiver of
the labor certification requirement. In order to qualify for this waiver, the
US business
must have been in operation and doing business for at least one year prior to
the filing of the waiver application. As stated above, no labor certification
is required for this classification; however, the prospective employer in the United States must furnish a job offer in the
form of a statement that indicates that the alien is to be employed in the United States
in a managerial or executive capacity. Such letter must clearly describe the
duties to be performed by the alien.
Employment-based 2nd Preference
The employment-based 2nd preference category is for aliens who are members of
the professions holding advanced degrees, or aliens of exceptional ability.
Advanced degree means any
United
States academic or professional degree or a
foreign equivalent degree above that of baccalaureate. The United States
baccalaureate degree or a foreign equivalent degree followed by at least five
(5) years of progressive experience in a specialty occupation shall be
considered the equivalent of a master's degree.
Exceptional ability in the sciences, arts, or business means a level of
expertise significantly above that ordinarily encountered in the sciences,
arts, or business. Profession means one of the occupations listed in Section
101(a)(32) of the Act, as well as any occupation for which a
United States baccalaureate degree
or its foreign equivalent is the minimum requirement for entry into the
occupation. The regulations set forth the type of documentation needed to
establish that the alien has the requisite degree or that the alien is of
exceptional ability in the sciences, arts, or business.
Every petition under this classification must be accompanied by an individual
labor certification from the Department of Labor, or the US immigration Service
may exempt the requirement of a job offer, and thus of a labor certification,
for aliens of exceptional ability in the sciences, arts, or business if such an
exemption would be in the national interest. To apply for this exemption the
alien must submit significant evidence to support the claim that such exemption
would be in the national interest.
Employment-based 3rd Preference
The employment-based 3rd preference category is divided into three areas:
skilled workers, professionals, and unskilled workers. A "Skilled
Worker" means an alien who is capable, at the time of petitioning for the
classification, of performing skilled labor (requiring at least two (2) years
training or experience), not of a temporary or seasonal nature, for which
qualified workers are not available in the United States. Relevant
post-secondary education may be considered as training for the purposes of this
provision.
"Professional" means a qualified alien who holds at least a
United States
baccalaureate degree or a foreign equivalent degree and who is a member of the
profession.
"Other worker" (unskilled) means a qualified alien who is capable, at
the time of petitioning for the classification, of performing unskilled labor
(requiring less than two (2) years training or experience), not of a temporary
or seasonal nature, for which qualified workers are not available in the United
States.
Every petition under the employment-based 3rd preference category must be
accompanied by an individual labor certification from the Department of Labor.
In addition, the alien must submit documentation to support his or her claim to
the education and /or experience requirements of the labor certification.
NOTE: It is extremely important to try to classify the alien as a skilled,
versus an unskilled worker. The approval time for a skilled worker application
may take only one to two years, while an unskilled worker application may take
ten years for ultimate approval, because of the different waiting lists for
each category.
In order to qualify for a labor certification, the alien needs a
US employer who
is willing to file an application on his or her behalf. The application is
filed with the Labor Department in the area where the alien will be employed.
The Labor Department regulations are quite lengthy, and often cumbersome. They
require that the employer advertise the position sought in a professional
journal, or for a period of three (3) consecutive days in a local newspaper of
general circulation. In addition, a notice of the job opportunity must be
posted at the employer's place of business, and the job must be listed with the
appropriate office of the state employment service.
This process has officially changed as of March 28, 2005, with the new
PERM regulations. Much of
the process can be done electronically and should take from 30 to 90 days.
Careful records must be kept by the employer and the same requirements must be
met.
If the application is approved, a labor certification is issued, and the
employer may then file a petition with the
US immigration service to classify
the beneficiary in the appropriate employment category. If the application is
denied, the employer may file an appeal to the Board of Alien Labor
Certification Appeals in Washington,
DC.
Each of the above EB1, EB2, and EB3 petitions must be filed on
US immigration
form I-140, Petition for Immigrant Worker. This must be filed with the US immigration
service center that has jurisdiction over the area of the alien's intended
employment. The documentation required to be submitted with the petition is
outlined in the regulations. If the alien is in the U.S. in legal status, or qualifies
for 245i, the I-485 residency application may be filed along with the I-140.
Employment-based 4th Preference
This category is reserved for certain special immigrants such as religious
immigrant workers. There is usually no backlog in this category; thus, no wait
for the immigrant visa.
Employment-based 5th Preference
These are for the investors. If you have a million dollars, you can invest and
get your green card. In special geographical designated areas, you can get away
with half a million.
