The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas which are divided into five preference categories. They may require a labor certification from the U.S. Department of Labor (DOL), and the filing of a petition with United States Citizenship and Immigration Services in the Department of Homeland Security (USCIS).
Employment Based Immigration Categories
Employment First Preference (E1)
Priority Workers receive 28.6 percent of the yearly worldwide limit. All Priority Workers must be the beneficiaries of an approved Form I- 140, Immigrant Petition for Foreign Worker, filed with USCIS. Within this preference there are three sub-groups:
Persons of extraordinary ability in the sciences, arts, education, business, 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;
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; andCertain 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 a petition with the USCIS.
Employment Second Preference (E2)
Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Sciences, or Business receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First Preference visas. All Second Preference applicants must have a labor certification approved by the DOL, or Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program (later). A job offer is required and the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the alien may file the petition, Form I-140, along with evidence of the national interest. There are two subgroups within this category:
Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession; and
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.
Employment Third Preference (E3)
Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First and Second Preference visas. All Third Preference applicants require an approved I-140 petition filed by the prospective employer. All such workers require a labor certification, or Schedule A designation, or evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. There are three subgroups within this category:
Skilled workers are persons capable of performing a job requiring at least two years” training or experience;
Professionals with a baccalaureate degree are members of a profession with at least a university bachelor”s degree; and
Other workers are those persons capable of filling positions requiring less than two years” training or experience.
Employment Fourth Preference (E4)
Special Immigrants receive 7.1 percent of the yearly worldwide limit. All such applicants must be the beneficiary of an approved I-360, Petition for Special Immigrant, except overseas employees of the U.S. Government who must use Form DS-1884. Certain spouses and children may accompany or follow-to-join the principal special immigrant. Different types of special immigrants provided for under immigrant law are listed below:
- Broadcaster in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization;
- Minister of Religion;
- Certain Employees or Former Employees of the U.S. Government Abroad;
- Employee of the Mission in Hong Kong;
- Certain Former Employees of the Panama Canal Company or Canal Zone Government;
- Certain Former Employees of the U.S. Government in the Panama Canal Zone;
- Certain Former Employees of the Panama Canal Company or Canal Zone Government on April 1, 1979;
- Interpreters and translators of Iraqi or Afghani nationality who have worked directly with the United States armed forces as a translator for a period of 12 months. This classification has an annual numeric limitation of fifty visas.
- Certain Foreign Medical Graduates (Adjustments Only);
- Certain Retired International Organization employees;
- Certain Spouses of a deceased International Organization Employee;
- Juvenile Court Dependent (no family member derivatives);
- Alien Recruited Outside of the United States Who Has Served or is Enlisted to Serve in the U.S. Armed Forces;
- Certain retired NATO-6 civilians;
- Certain surviving spouses of deceased NATO-6 civilian employees;
- Alien beneficiary of a petition or labor certification application filed prior to Sept. 11, 2001, if the petition or application was rendered void due to a terrorist act of Sept. 11, 2001;
- Certain Religious Workers.
Employment Fifth Preference (E5)
Employment Creation Investors receive 7.1 percent of the yearly worldwide limit. All applicants must file a Form I-526, Immigrant Petition by Alien Entrepreneur with USCIS. To qualify, an alien must invest between U.S. $500,000 and $1,000,000, depending on the employment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.
A person whose occupation requires a labor certification must have prearranged employment in the United States.
Individual Labor Certification/PERM
Effective March 28, 2005, the applicant must complete DOL Form ETA-9089 online. Detailed information on this Program is available at the Deparment of Labor’s website.
Schedule A Designation
The Department of Labor has made a schedule of occupations for which it delegates authority to USCIS to approve labor certifications. Schedule A, Group I, includes physical therapists and nurses. Schedule A, Group II includes aliens of exceptional ability in the sciences and arts (except performing arts). To apply for Schedule A designation, the employer must submit a completed, uncertified Form ETA-9089 in duplicate to USCIS along with the I-140 petition.
Labor Market Information Pilot Program
The Immigration Act of 1990 provides for the DOL to establish a Labor Market Information Pilot Program which will define up to ten occupational classifications in which there are labor shortages. For aliens within a listed shortage occupation, a labor certification will be deemed to have been issued for purposes of an employment-based immigrant petition. USCIS can provide further information.
All intending immigrants who plan to base their immigrant visa application on employment in the United States must obtain an approved immigrant visa petition from USCIS. If a necessary labor certification is granted, the employer may then file a Form I-140, Petition for Prospective Immigrant Employee, with USCIS for the appropriate employment-based preference category.
VISA INELIGIBILITY / WAIVER
The immigration laws of the United States, in order to protect the health, welfare, and security of the U.S., prohibit the issuance of a visa to certain applicants. Examples of applicants who must be refused visas are those who: have a communicable disease, or have a dangerous physical or mental disorder; have committed serious criminal acts; are terrorists, subversives, members of a totalitarian party, or former Nazi war criminals; have used illegal means to enter the U.S.; or are ineligible for citizenship. Some former exchange visitors must live abroad for two years. Physicians who intend to practice medicine must pass a qualifying exam before receiving immigrant visas. If found to be ineligible, the consular officer will advise the applicant of any waivers.
OTHER IMPORTANT INFORMATION
Documents for Visa Application
All applicants must submit certain personal documents such as passports, birth certificates, police certificates, and other civil documents, as well as evidence that they will not become public charges in the United States. The consular officer will inform visa applicants of the documents needed as their applications are processed.
Before the issuance of an immigrant visa, every applicant, regardless of age, must undergo a medical examination. The examination will be conducted by a doctor designated by the consular officer. Examination costs must be borne by the applicant, in addition to the visa fees.
The cost of each immigrant visa application processing fee (per person) is (US) $335. Fees must be paid for each intending immigrant, regardless of age, and are not refundable. Local currency equivalents are acceptable. Fees should not be sent to the consular office unless requested specifically. USCIS charges additional fees for filing petitions.
Whenever there are more qualified applicants for a category than there are available numbers, the category will be considered oversubscribed, and immigrant visas will be issued in the chronological order in which the petitions were filed until the numerical limit for the category is reached. The filing date of a petition becomes the applicant”s priority date. Immigrant visas cannot be issued until an applicant”s priority date is reached. In certain heavily oversubscribed categories, there may be a waiting period of several years before a priority date is reached. Check the Visa Bulletin for the latest priority dates.
Since no advance assurances can be given that a visa will be issued, applicants are advised not to make any final travel arrangements, not to dispose of their property, and not to give up their jobs until visas have been issued to them. An immigrant visa can be valid for six months from issuance date.
With few exceptions, a person born in the United States has a claim to U.S. citizenship. Persons born in countries other than the U.S. may have a claim, under United States law, to U.S. nationality if either parent was: