Employment Based Immigration

1. Overview

Every year a minimum of 140,000 employment based immigrant visas are provided by U.S immigration. The employment based visa is divided into five preference categories.

2. Employment First Preference (EB-1)

Within this preference there are three sub-groups:

2A. EB-1(a)

The first group is for individuals who have an extraordinary ability in the sciences, arts, education or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. Such applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. Such applicants can file their own petition with the USCIS, rather than through an employer.

2B. EB-1(b)

The second group is for outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS.

2C. EB-1(c)

The third group is for certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file an Immigrant Petition for Alien Worker, Form I-140 with the USCIS.

3. Employment Second Preference (EB-2)

A Second Preference applicant must generally have a labor certification approved by the Department of Labor. A job offer is required, and the U.S. employer must file an Immigrant Petition for Alien Worker, Form I-140, on behalf of the applicant. Applicants may apply for an exemption, known as a National Interest Waiver, from the job offer and labor certification if the exemption would be in the national interest. In this case, the applicant may self-petition by filing the Immigrant Petition for Alien Worker, Form I-140, along with evidence of the national interest. Professionals Holding Advanced Degrees and Persons of Exceptional Ability receive 28.6 percent of the yearly worldwide limit of employment-based immigrant visas, plus any unused visas from the Employment First Preference category.

There are two subgroups within this category:

1. Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession.

2. Persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field.

4. Employment Third Preference (EB-3)

A Third Preference applicant must have an approved Immigration Petition for Alien Worker, Form I-140, filed by the prospective employer. All such workers generally require labor certification approved by the Department of Labor. There are three subgroups within this category:

Skilled workers are persons whose jobs require a minimum of 2 years training or work experience that are not temporary or seasonal.

Professionals are members of the professions whose jobs require at least a baccalaureate degree from a U.S. university or college or its foreign equivalent degree.

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.

5. Employment Fourth Preference (EB-4)

A Fourth Preference applicant must be the beneficiary of an approved Petition for Amerasian, Widower, or Special Immigrant, Form I-360, with the exception of Certain Employees or Former Employees of the U.S. Government Abroad: There are many subgroups for the EB-4, please contact us for more details.

6. Employment Fifth Preference (EB-5)

Immigrant Investor visa categories are for capital investment by foreign investors in new commercial enterprises in the United States which provide job creation. To qualify as an immigrant investor, a foreign national must invest, without borrowing, the following minimum qualifying capital dollar amounts in a qualifying commercial enterprise:

1. $1,800,000 (U.S.); or

2. $900,000 (U.S.) in a high-unemployment or rural area, considered a targeted employment area.

A qualifying investment must, within two years, create full-time jobs for at least 10 U.S. citizens, lawful permanent residents, or other immigrants authorized to work in the United States, not including the investor and the investor’s spouse, sons, or daughters

7. National Interest Waiver

Under the National Interest Waiver, one must prove that their admission in the U.S will be in the national interest of the state. As a result, they will be able to waive the offer of employment requirement. A foreigner must first qualify for the EB-2 preference. Afterwards they must establish how they qualify for a NIW.

Three requirements a beneficiary must meet in order to qualify for a NIW

1.     The individual must have substantial merit and national importance.
2.     The individual is able to advance the proposed endeavor.
3.     Must be beneficial to the United states to waive the Job offer requirement.

8. Foreign Nurses Immigration process

One must follow 8 key steps in the following order

1.     The foreigner must fulfill the basic educational requirements
2.     If mandated, one must take and pass the English language proficiency test.
3.     Then the individual must receive credential evaluation
4.     One must pass the National Council Licensing Examination-Registered Nurse
5.     Afterwards the individual must find a U.S based employer or a nursing recruiting agency.
6.     Then you must apply and acquire an RN immigrant visa/ green card
7.     The individual will then go through a RN interview and medical examinations.
8.     Lastly, the foreigner will accept a RN position.

9. Permanent Labor Certification

A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security’s U.S Citizenship and Immigration Services, the employer must obtain a certified labor certification application from the DOL’s Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

10. Adjustment of Status

Adjustment of status is the process that you can use to apply for lawful permanent resident status (also known as applying for a Green Card) when you are present in the United States. This means that you may get a Green Card without having to return to your home country to complete visa processing.
1. Determine if you are eligible to apply for a Green Card
2. You or someone else must file an immigrant petition for you (if applicable)
3. Check visa availability (if applicable)
4. File Form I-485
5. Go to your Application Support Center Biometrics appointment
6. Go to your interview (if applicable)
7. Respond to request for additional evidence (if applicable)
8. Check your case status
9. Receive a decision

11. Concurrent Filing of I-140 & I-485

In certain instances, you can file your Form I-485 together, or “concurrently,” with the underlying Form I-130 or Form I-140 immigrant petition. You may concurrently file your Form I-485 only when approval of the underlying immigrant petition would make a visa immediately available to you.

If you are seeking adjustment of status under a family-sponsored and employment-based preference category, you may concurrently file your Form I-485 with the Form I 130 or Form I-140 only if:

1. Your priority date is earlier than the cut-off date listed in the “Application Final Action Dates” chart in the monthly Visa Bulletin for your preference category and country of chargeability;

The Visa Bulletin chart indicates “C” instead of a specific cut-off date, meaning that your preference category and country of chargeability is current and that you may file Form I-485 regardless of the priority date; or
When permitted by USCIS (as described above in “Acceptance of Adjustment Status Applications”), your priority date is earlier than the cut-off date listed in the “Dates for Filing Applications” chart for your preference category and country of chargeability.

12. Advance Parole

Aliens who have pending applications for certain immigration benefits need Advance Parole to re-enter the U.S. after traveling abroad. Aliens applying for advance parole on the basis of a pending application for adjustment of status must be approved for advance parole prior to leaving the United States in order to avoid the termination of their pending application for adjustment. Aliens in the United States should, prior to departure, obtain Advance Parole in order to re-enter the United States after travel abroad if they have:

1. Filed an application for adjustment of status but have not received a decision from the U.S. Citizenship and Immigration Services;

2. Hold refugee or asylee status and intend to depart temporarily to apply for a U.S. immigrant visa in Canada; and/or

3. An emergent personal or bona fide reason to travel temporarily abroad.

13. Employment Authorization (EAD Work Permit)

U.S. employers must check to make sure all employees, regardless of citizenship or national origin, are allowed to work in the United States. Having an Employment Authorization Document (EAD) is one way to prove that you are allowed to work in the United States for a specific time period. To request an EAD, you must file form I-765, Application for Employment Authorization. You will need to apply for an EAD if you:

1. Are authorized to work in the United States because of your immigration status (for example, you are an asylee, refugee, or U nonimmigrant) and need evidence of that employment authorization, or

2. Are required to apply for permission to work; in other words, you need to request employment authorization itself. For example:

3. You have a pending Form I-485, Application to Register Permanent Residence or Adjust Status.

4. You have a pending Form I-589, Application for Asylum and for Withholding of Removal.

5. You have a nonimmigrant status that allows you to be in the United States but does not allow you to work in the United States without first seeking permission from USCIS (such as an F-1 or M-1 student).

14. What’s a Priority Date?

Priority dates are given to immigrants waiting in line to get an immigrant visa and determine when a visa becomes available.

If you are a prospective immigrant, you can find your priority date on Form I- 797, Notice of Action, for the petition filed on your behalf. The waiting time before receiving an immigrant visa or adjusting status depends on:

1. The demand for and supply of immigrant visas.

The per-country visa limitations.

The number of visas allocated for your preference category.

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