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Employment-Based Immigration

Employment-Based Permanent Residence Petitions

The Immigration and Nationality Act authorizes a set number of visas to be issued annually. In total, this statutorily defined number is 140,000 employment-based immigrant visas per year. Most employment-based permanent residence petitions require applicants to submit Form I-140 to U.S. Citizenship and Immigration Services (USCIS).

Available visas are divided among five preference categories. Below is a general introduction to these categories.

EB-1: First Preference for "Priority Workers"

First-preference petitions for “priority workers” account for 28.6 percent of the annual worldwide limit, which amounts to roughly 40,000 visas. Each priority worker must be the beneficiary of an approved Form I-140.

First-preference petitions are further categorized into three sub-groups:

  1. EB-1A: This category is reserved for applicants of "extraordinary ability" in the sciences, arts, education, business, or athletics. To qualify as "extraordinary," applicants must submit extensive documentation showing sustained national or international acclaim and recognition in their field of expertise. Notably, applicants do not have to have a specific job offer, provided that they are seeking entry into the U.S. to continue work in the field for which they have been recognized for extraordinary abilities. As such, labor certification isn’t required, and without the need for a sponsoring employer, applicants can petition on behalf of themselves.

  2. EB-1B: This sub-group is meant for “outstanding” professors and researchers. To qualify as “outstanding” in one of the two professional capacities, applicants must have at least three years’ experience in teaching or research, and must have earned international recognition in their fields of endeavor. Notably, labor certification isn’t required, but employer sponsorship is: prospective employers (i.e. universities or private companies with established research departments) must petition on behalf of aliens and provide them with a job offer.

  3. EB-1C: This category includes executives and managers subject to an international transfer to the U.S. To qualify, applicants must have been employed for at least one of the three years prior to the time the overseas affiliate, parent, subsidiary, or branch of a U.S. employer files the petition. Applicants must also seek entry into the U.S. to assume work in a managerial or executive capacity. While no labor certification is required, prospective employers serve as the petitioners and must provide a job offer to alien beneficiaries they’re sponsoring.

EB-2: Second Preference

Second-preference petitions for members of professions holding an advanced degree or foreign nationals with exceptional abilities account for 28.6 percent of the annual worldwide limit, which amounts to roughly 40,000 visas, plus any unused EB-1 visas for the year.

To qualify as a professional holding an advanced degree, applicants must have an educational background exceeding a bachelor's degree and at least five years of progressive experience in their profession.

To qualify as a foreign national with exceptional ability, applicants must demonstrate expertise in the arts, sciences, or business that, in sum, is significantly greater than that ordinarily encountered in their fields.

EB-2 petitions require both PERM labor certification and an associated job offer, with two exceptions:

  1. USCIS eliminates the job offer requirement for a National Interest Waiver (NIW) application,, which is a petition aliens may file on their behalf along with evidence demonstrating that their immigration to the U.S. would serve national interests. NIW petitions have increased in popularity over the years, and in light of the growth in the number of NIWs filed, it’s more important than ever to consult experienced immigration attorneys

  2. The job falls under Schedule A. (For additional information on qualifying occupations, please refer here.)

(Previously, an applicant could alternatively demonstrate that he or she qualified for a deficient occupation in the Labor Market Information Pilot Program, but said program has expired.)

If neither of the two exceptions above applies, then a U.S. employer must file a Form I-140 petition on behalf of an alien beneficiary on the basis of an approved PERM labor certification

EB-3: Third Preference

Third-preference petitions are reserved for three sub-groups: “skilled workers,” “professionals,” and (rather broadly) “other workers.” These account for another 28.6 percent of the annual worldwide cap, which amounts to roughly 40,000 visas, plus any unused EB-1 and EB-2 visas. A maximum of 10,000 visas are specifically available to unskilled workers. All EB-3 petitions take the form of an I-140 petition filed by a prospective employer and a labor certification.

The Code of Federal Regulations defines the three sub-groups in EB-3 as follows:

  1. “Skilled workers” include persons capable of performing a job requiring at least two years' training or experience.

  2. “Professionals” include persons with a bachelor’s degree who are members of a profession requiring, at a minimum, a bachelor's degree.

  3. “Other workers” include persons capable of filling unskilled positions requiring less than two years' training or experience.

EB-4: Fourth Preference for “Special Immigrants”

Fourth-preference petitions are meant for “special immigrants,” and account for 7.1 percent of the yearly worldwide limit, which amounts to slightly fewer than 10,000 visas. All EB-4 petitions require approved Form I-360 for Special Immigrants, with the exception of overseas employees of the U.S. government, who are required to file Form DS-1884.

Special immigrants qualifying under this category include:

  1. Religious workers intending to work as a minister, to work in a professional capacity in a religious vocation, or to work for a tax-exempt organization affiliated with a religious denomination 

  2. Special immigrant juveniles

  3. Certain members of the U.S. Armed Forces

  4. Broadcasters

  5. Certain physicians

  6. Certain overseas employees of the U.S. government

  7. Employees of the Panama Canal Zone

  8. Retired employees of international organizations

  9. Certain dependents of international organization employees

  10. Afghan and Iraqi translators

For a full list of qualifying EB-4 special immigrants, click here.

EB-5: Fifth Preference Immigrant Investor Program

Fifth-preference petitions account for the final 7.1 percent, or roughly 10,000 visas, of the yearly worldwide limit. Created in 1990 in order to stimulate domestic job creation, the Immigrant Investor Program is reserved for entrepreneurs, as well as their spouses and unmarried children younger than 21, who satisfy two conditions:

  1. Make the minimum investment in a commercial enterprise in the U.S., which is either $500,000 or $1 million, depending on the employment rate in the area where the commercial enterprise is located. A commercial enterprise is defined as any for-profit entity formed for ongoing lawful business.

  2. Create no fewer than 10 new, full-time jobs in the commercial enterprise. The jobs must be filled by U.S. citizens, U.S. permanent residents, or other lawful immigrants that exclude the investor and his or her family.

Special Issues in Employment-Based Immigration Categories

What is a “priority date, and how does it affect petitions in different categories?

The date on which an applicant’s immigration application is filed is known as the priority date. Given the statutory limit to visas issued annually, there are times when more qualified applicants petition under a category than there are available visa numbers in said category. When this situation arises, such a category is considered oversubscribed.

In oversubscribed categories, immigrant visas are issued chronologically, according to the dates petitions are filed, until the respective limit is satisfied. An immigrant visa cannot be issued to an applicant until said applicant’s priority date is reached.

In certain significantly oversubscribed categories, such as EB-3, there may be a waiting period of several years before a certain priority date is reached.

For up-to-date information on visa number availability and priority dates, refer to our visa bulletin or here.

Relief for Communist Party Members with Immigrant Intent

For questions on this issue, refer to a memo we published on our website.

Updated 04/10/2017

 




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