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EMPLOYMENT IMMIGRATION VISAS
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 the Bureau of Citizenship and
Immigration Services in the Department of Homeland Security (BCIS).
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 BCIS. 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 BCIS,
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 BCIS; and
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 a petition with the BCIS.
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. There are six subgroups:
1) Religious workers coming to carry on the vocation of a minister of religion,
or to work in a professional capacity in a religious vocation, or to work for a
tax-exempt organization affiliated with a religious denomination;
2) Certain overseas employees of the U.S. Government;
3) Former employees of the Panama Canal Company;
4) Retired employees of international organizations;
5) Certain dependents of international organization employees; and
6) Certain members of the U.S. Armed Forces.
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 the BCIS. 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.
LABOR CERTIFICATION
A person whose occupation requires a labor certification must have prearranged
employment in the United States.
Individual Labor Certification
The applicant must complete DOL Form ETA-750B, Statement of Qualifications of
Alien, and send this completed form to the prospective employer who completes
Form ETA-750A, Application for Alien Employment Certification, Offer of
Employment. The prospective employer submits both forms to the local office of
the State Employment Service in the area in the United States where the work
will be performed. The employer will then be notified by the appropriate
regional office of the DOL of its approval or disapproval.
Schedule A Designation
The Department of Labor has made a schedule of occupations for which it
delegates authority to the BCIS 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-750 in duplicate to the BCIS 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. The BCIS can provide
further information.
PETITION
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 the BCIS. If a necessary labor certification is granted, the employer may
then file a Form I-140, Petition for Prospective Immigrant Employee, with the
BCIS 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.
NUMERICAL LIMITATIONS
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.
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