Immigration Law now provides a priority system for granting permanent residence to foreign-born nationals based on employment skills. Annually, 140,000 immigration visas are available for principal foreign-born nationals who qualify under the following five employment-based (“EB”) preference categories:
FIRST: EB-1 Priority Workers
40,000 Visas per year
- Individuals of extraordinary ability in the sciences, arts, education, business, or athletics.
- Outstanding professors or researchers.
- Certain managers and executives transferred to the United States to work for their foreign employer or a U.S. affiliate or subsidiary firm.
SECOND: EB-2 Advanced degree Professionals and Individuals of Exceptional Ability
40,000 Visas per year
- Individuals of exceptional ability in the sciences, arts, or business.
- Members of the professions, if they hold an advanced degree (or the equivalent).
THIRD: EB-3 Skilled Workers, Professionals and other Workers
40,000 Visas per year
- Professionals with bachelor’s degrees (not qualifying for a higher preference category).
- Skilled workers (minimum two years training and experience).
- Unskilled workers (maximum 10,000 visas available per year, of which 5,000 have been dedicated to adjustees under the Nicaraguan Adjustment and Central American Relief Act (NACARA).
FOURTH: EB-4 Special Immigrants: Religious Workers
10,000 Visas per year
This classification is comprised of all special immigrants as defined in the Immigration Statute, other than returning residents and former U.S. citizens who are eligible to become citizens again. We discuss here only one subcategory: religious workers.
Religious Workers Includes:
- Ministers (those authorized to conduct worship services and perform other duties assigned to the clergy of the religion)
- Religious workers in professional fields
- Other religious workers.
Limit on admissions:
Until September 30, 2008, up to 5,000 EB-4 immigration visas may be made available each fiscal year to religious workers who are not ministers. Ministers are not subject to this limit.
Sunset Provision on Religious Workers:
After September 30, 2008, religious workers other than ministers will no longer qualify as EB-4 immigrants. Ministers will still qualify after September 30. 2008.
FIFTH: EB-5 Immigrant Investors
10,000 Visas per year
Entrepreneurs whose new commercial enterprises will directly create 10 or more jobs in the U.S.; 3,000 visas reserved for investors in targeted employment areas and 300 for Immigrant Investor Pilot Program.
How to Apply
Step 1. Visa petition process:
An eligible petitioner must file with the appropriate USCIS office a Form I-140 for the foreign-born national seeking to immigrate. In most cases, the eligible petitioner is the U.S. employer seeking to employ the individual. Under some situations, the individual himself or herself may file the petition.
For 2nd and 3rd employment-based classifications: An individual may not immigrate in the 2nd or 3rd employment-based classifications unless the Secretary of Labor has determined that there are not enough domestic workers available in the United States to perform the intended employment in the part of the United States where the individual will be employed and that the individual’s immigration will not adversely affect wages and working conditions in the United States. The intending employer may not file a Form I-140 with USCIS unless the intending employer has obtained this labor certification, and includes the labor certification with the Form I-140. The intending employer obtains this labor certification as provided in regulations published by the U.S. Department of Labor, not USCIS.
Step 2. Acquisition of permanent residence:
- If the foreign-born national is present in the U.S. in a lawful nonimmigrant status, he/she may apply for adjustment of status under INA § 245 by filing Form I-485 with the appropriate USCIS office. If the foreign-born national wants to engage in employment while the adjustment application is pending, he/she should also file Form I-765 with the Form I-485.
- If the foreign-born national is abroad, or is not eligible for adjustment of status, he/she may apply for an immigrant visa at a U.S. consulate abroad once the individual’s date is current. If the foreign-born national obtains the immigrant visa, he/she becomes a permanent resident when he/she travels to the U.S. with the immigrant visa and is admitted by an immigration inspector.
Determining the priority date:
The “priority date” determines an individual’s “place in line” for a visa. For EB-1 immigrants, the priority date is the date the employer files the Form I-140 with USCIS. For EB-2 and EB-3 immigrants, the priority date is the date the employer applies for the labor certification, if an individual labor certification is required. If an individual labor certification is not required, the priority date is the date the employer files the Form I-140 with USCIS. If the foreign-born national is the beneficiary of more than one Form I-140, the priority date for EACH Form I-140 is the priority date for the earliest Form I-140. For EB-4 immigrants, Form I-360 is filed instead of Form I-140. The priority date is the date of filing the Form I-360.
The Visa Office, U.S. Department of State, publishes for each month a Visa Bulletin, which specifies the priority date for each immigrant visa classification. If an individual’s priority date is earlier than the priority date shown in the Visa Bulletin for the particular immigrant visa classification, then an immigrant visa is available for the individual’s use. If the Visa Bulletin shows the priority date as “C,” then an immigrant visa is available for all approved visa petitions beneficiaries in that classification. The current visa bulletin is available at on our website under “Priority Dates.”
FIRST PREFERENCE: Priority Workers – Individuals with Extraordinary Ability
WHO MAY FILE: The foreign-born national may file the Form I-140 on his/her own behalf. So may any other person acting on the foreign-born national’s behalf.
Definition of “Extraordinary” Ability:
Extraordinary ability means a level of expertise found only in that small percentage of persons who have risen to the very top of their respective fields.
- Foreign-born national’s extraordinary achievements in the sciences, arts, education, business, or athletics have resulted in sustained national or international status in the individual’s field.
- Foreign-born national intends to enter the U.S. to work in the field in which he or she has earned extraordinary status
- USCIS finds that individual’s admission, as a permanent resident will substantially benefit the U.S.
The foreign-born national must demonstrate a major achievement such as an internationally recognized award (for example Nobel Prize) or evidence establishing at least three of the following:
- Lesser national or international award for excellence in the field of individual’s intended U.S. employment.
- Membership in association(s) in foreign-born national’s field that require members to have demonstrated outstanding achievements as judged by acknowledged experts.
- Published material about the foreign-born national in major professional/trade publications or other major media.
- Selection of foreign-born national to judge others in the same or allied field.
- Original contributions of importance in the foreign-born national’s field.
- Authorship of scholarly articles in professional/trade publications or other major media.
- Display of foreign-born national’s work in artistic exhibitions.
- Performance of leading or critical role for distinguished organizations or institutions.
- High salary or other remuneration in relation to others in the field.
- Commercial success in the performing arts (box office receipts, recordings, videos, etc.)
Note: If the above criteria do not readily apply to the foreign-born national’s occupation, the individual may submit comparable evidence.
Employment in the U.S.:
Strictly speaking, the individual of extraordinary ability need not be seeking “employment” in the United States. He/she must, however, be coming to the U.S. to continue to work in the area of the foreign-born national’s extraordinary ability. Thus, the foreign-born national must present employment offers, prearranged commitments, arrangements to engage in self-employment, or other evidence showing that he/she will continue to work in the area of his/her extraordinary ability.
FIRST PREFERENCE: Priority Workers – Outstanding Professors and Researchers
WHO MAY FILE: The intending U.S. employer must file the Form I-140.
Evidence of international recognition in area of academic specialty demonstrated by submitting evidence of two of the following:
- Receipt of major prizes/awards for outstanding achievement in the field.
- Membership in an association requiring outstanding achievement in the field.
- Published material in professional publications written by others about applicant’s work in the field.
- Participation as a judge of the work of others in the field.
- Original scientific or scholarly research.
- Authorship of scholarly articles/books in the specialty area.
- 3 years experience in teaching or research (includes graduate or post doctoral work, if qualifying).
- An offer for a tenure track teaching or comparable research position (of unlimited duration) at an institution of higher education or private institution of demonstrated research accomplishments in the field that employs at least 3 full-time researchers.
FIRST PREFERENCE: Priority Workers – Certain Multinational Executives and Managers
- During the three years immediately preceding the filing of the petition, the foreign-born national must have been employed abroad by the U.S. employer (or a subsidiary or affiliate of the U.S. employer) for at least one year as a manager or executive.
- The foreign-born national must be coming to the U.S. to continue employment as a manager or executive with the foreign employer or U.S. subsidiary or affiliate.
SECOND PREFERENCE: Professionals with Advanced Degrees (or the equivalent), or Individuals of Exceptional Ability in Arts, Sciences, or Business
REQUIREMENTS FOR ALL SECOND PREFERENCE CASES:
Unless the foreign-born national obtains a national interest waiver (see below), no individual qualifies as an EB-2 immigrant unless an employer in the U.S. is seeking the individual’s service in the qualifying field of employment.
The intending U.S. employer must obtain a labor certification, unless USCIS waives the job offer requirement. Unless the field of employment is listed as a “Schedule A” occupation, an individual labor certification is required.
WHO MAY FILE: Unless the foreign-born national seeks a waiver of the job offer requirement, the intending U.S. employer must file the Form I-140. If the foreign-born national does seek a waiver of the job offer requirement, then the foreign-born national or someone acting on the foreign-born national’s behalf, may file the Form I-140.
REQUIREMENTS FOR MEMBERS OF THE PROFESSIONS HOLDING ADVANCED DEGREES (or the equivalent)
A foreign-born national qualifies for the Second Preference Employment-based classification as a member of the professions holding an advanced degree (or the equivalent) only if:
- The position to be filled by the beneficiary must require a member of the professions with an advanced degree or the equivalent.
- beneficiary has the credentials specifically required for the position.
Member of the professions include architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries, as well as those working in an y other occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.
Advanced degree means an academic or professional degree beyond the baccalaureate.
Or the equivalent means the possession of a bachelor’s degree in the field, followed by at least five years of progressive experience in the specialty.
Individuals of exceptional ability:
Exceptional ability requires a degree of expertise significantly above that ordinarily encountered.
“The arts” includes athletics and entertainment.
Exceptional ability in the arts, sciences, or business, demonstrated by a minimum of three of the following types of documentation relating to the filed of exceptional ability:
- Official academic record demonstrating that the individual has earned degree(s).
- Statement(s) from employer(s) demonstrating at least ten years of full-time experience in the field.
- License or certification for professional practice.
- Salary or other remuneration for services commensurate with that of a professional.
- Membership in professional association(s).
- Recognition by peers or government/professional entities for achievements and contributions.
National Interest Waiver
In order to obtain a national interest waiver, a petitioner must submit a form ETA-750 part B (Statement of Qualifications) together with evidence to support the claim that such an exemption would be in the national interest. The term national interest is not defined by statute or regulation and each case is judged on its own merit.
Under the decision in Matter of New York State Department of Transportation, 22 I & N Dec. 215 (AAO 1998), USCIS considers the following factors when evaluating a request for a national interest waiver:
- The proposed employment is in an area that has substantial inherent value,
- The proposed benefit to be provided by the applicant is national in scope,
- The national benefit to be provided by the applicant outweighs the national interest in the labor certification process (i.e., testing the U.S. labor market to ensure that no U.S. worker is available to fill the position for which the applicant is to be hired).
National Interest Waiver for Physicians:
Special rules were established by statute and regulations for certain physicians who are willing to work full-time for five (5) years in medically underserved areas or at VA facilities. The Secretary of Health and Human Services (HHS) currently limits physicians in designated shortage areas to the practice of family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology and psychiatry.
The petition must meet all documentary requirements of the EB-2 category such as petition with national interest waiver request, evidence of advanced degree or exceptional ability. In addition the following must be submitted:
- Full-time employment contract, employment commitment letter from a VA facility, or if self-employed, sworn statement committing to full-time practices of clinical medicine and steps taken to establish such practice.
- Evidence that the service will be provided in a medically underserved area designated by the HHS or a VA facility.
- Attestation from a Federal agency or state health department issued within six (6) months of the filing of the petition that the physician’s work is or will be in the national interest.
- Evidence that the physician meets the admissibility requirements of INA sec. 212 (a)(5)(B) that requires graduates of an unaccredited medical school to have passed parts I and II of the National Board of Medical Examiners Examination (or an equivalent examination) and is competent in oral and written English.
- Evidence of USCIS-issued waiver if the physician has been a J-1 receiving medical training in the U.S.
THIRD PREFERENCE: Skilled Workers, Professionals, and Other Workers
WHO MAY FILE: The intending U.S. employer must file the Form I-140.
The intending U.S. employer must obtain a labor certification, unless the field of employment is listed as a “Schedule A” occupation.
- Skilled worker means one capable of performing labor that requires at least two years of training or experience. Member of the professions include architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries, as well as those working in any other occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.
- Other workers include all beneficiaries with lower credentials than skilled workers who perform unskilled labor.
The common requirement for each subcategory is that the offered job must require a person with the stated qualifications (skilled work, membership in a profession, unskilled work) and the foreign-born national must have the required qualifications. For example, a member of one of the professions who holds a bachelor’s degree would not qualify for EB-3 status if the proffered employment did not require a person with that qualification.
FOURTH PREFERENCE: “Special Immigrant” Religious Workers
Religious workers are divided into three subcategories: ministers, professionals and workers in a religious occupation or vocation.
Note: only ministers will qualify as Fourth Employment Based Special Immigrants after September 30, 2008.
REQUIREMENTS FOR RELIGIOUS WORKERS:
Each petition for a religious worker must be filed on Form I-360. It must also be accompanied by:
- Evidence that the organization qualifies as a nonprofit religious organization in the form of an Internal Revenue Service tax-exempt documentation.
- Letter from an authorized official of the religious organization in the United States establishing membership for at least two (2) years in the religious denomination and two years experience as a minister, professional or worker in a religious occupation or vocation immediately preceding the filing of the petition.
- The letter must also certify the individual is authorized to perform the duties of a minister, or is qualified in the religious occupation or vocation. Applicants who seek to enter the U.S. as a professional or worker in a religious vocation or occupation, are eligible for EB-4th preference classification only through September 30, 2008 and must meet the following requirements:
- Membership in the religious denomination that has had a bona fide nonprofit religious organization in the U.S. for at least two (2) years immediately preceding the date of filing the petition.
- Must also have worked in the religious vocation during the same two-year period.
- Seeking entry into the U.S. solely for the purpose of carrying on a religious vocation or occupation.
Application to Adjust Status from
Non-immigrant to Employment-Based Permanent Resident
WHO MAY FILE: Any applicant who has an approved I-140 or I-360 or I-526, and for whom an immigrant visa is currently available may file a Form I-485 to apply for permanent residence in the U.S. A new rule adopted in July 2002 by the USCIS states that if a visa is currently available for a preference category, a Form I-485 may be filed concurrently with the Form I-140.
Application for Immigrant Visa at U.S. Consulate Abroad
If the foreign-born national is overseas or is not eligible to apply for permanent residence (adjustment of status) in the U.S., he or she may apply for the immigrant visa at the U.S. Embassy or Consulate in the individual’s home country or country of last residence.