Employee Based Immigration
Under the category of Employment and Investment based immigration, there are 5 main preferences, namely:
First Preference: (EB-1 priority workers) – aliens with Extraordinary Ability, including outstanding professors & researchers and certain multinational executives& managers.
Second Preference: (EB-2 workers with an advanced degree or exceptional ability) – aliens who are members of a profession holding advanced degrees or their equivalent and aliens who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural/educational interests or welfare of the United States. Under this category, aliens may apply for a National Interest Waiver, if they qualify for it.
Third Preference: (EB-3 professionals, skilled workers, and other workers) – aliens with at least two years of experience as skilled workers, professionals with a baccalaureate degree, and others with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.
Fourth Preference: (EB-4 special workers such as those in a religious vocation or occupation) – aliens who, for at least two years before applying for admission to the United States, have been a member of a religious denomination that has a non-profit religious organization in the United States, and who will be working in a religious vocation or occupation at the request of the religious organization.
Fifth Preference: (EB-5 Employment Creation) – for persons who want to be granted immigrant status in the United States for the purpose of engaging in a new commercial enterprise, i.e., Investment Based Immigration.
Requirements for the First, Second and Third Preference
When an alien applies for an immigrant visa under any one of the above three categories, he/she must keep in mind, the following points.
- The U.S. employer must provide the alien a full time, permanent job.
Note: In the First Preference, aliens of ‘extraordinary ability’ need not have a firm offer of employment, and this offer may also be waived in the Second Preference under certain conditions. (See above)
- The Department of Labor (DOL) must certify that there are no U.S. workers to fill the position that the alien wishes to occupy.
Before an employer files the immigration application with the INS on behalf of the alien, he/she must first apply to the DOL for a labor certification through the PERM process which will certify that U.S. workers are not available for this particular job. In certain areas and for certain positions, there is a chronic shortage of U.S. workers and therefore, with regard to these positions, the DOL has found that there is no need to file an application. These types of positions are known as pre-certified. These cases are filed directly with the INS, who will determine whether the position is on the list of the DOL’s pre-certified positions.
Note: This is not applicable for the First Preference or for those who have obtained a national interest waiver under the Second Preference.
- The alien must meet the minimum requirements for the job.
The alien must have the qualifications required for the job at the initial time of filing the papers.
When the employer applies for the DOL’s certification, he/she must submit a list of the minimum requirements for the position and include a statement of the alien’s qualifications and experience. The DOL will scrutinize the application to see whether the employer has shaped its minimum requirements to fit the alien’s particular qualifications and experience and thereby narrowed down the field of potential U.S. job seekers. Therefore, it is very important that the employer verify that the alien has the credentials required to meet the job position before filing the labor certification application.
- The employer must show the ability to pay the alien’s salary.
This is important especially when nationals of the same country as the alien run small family enterprises. The documentation must show that the employer is able to pay the alien’s salary at the time of filing the labor certification application, or if that is not required, then the date of filing the preference petition. USCIS is extremely strict about this point and the employer must show evidence of his/her capacity by copies of annual reports, federal tax returns, audited financial statements, bank account records, etc. For large businesses with over 100 employees, a statement from the financial officer together with the annual report is a good combination of documents to show evidence of the ability to pay the salary of the alien.
- The alien and employer must both have the intent to undertake the employment relationship.
- The employer can be penalized for knowingly hiring aliens who are unauthorized to work in the U.S.
Under the Immigration Reform and Control Act of 1986 (IRCA), employers can be penalized for knowingly hiring or continuing to employ aliens who do not have permission to work in the United States. Employers must therefore be careful to verify that the alien is authorized to work in the U.S.
This category covers aliens who are known as priority workers, i.e. those with Extraordinary Ability, outstanding professors & researchers and certain multinational executives & managers. A firm job offer is not required for an applicant who qualifies as an alien of extraordinary ability in this group, therefore, he/she may file his/her petition directly with the USCIS, rather than going through an employer. However, the alien must show that he/she intends to continue working in the same field in which he/she has an extraordinary ability.
Multinational Executives and Managers also fall within the first preference category and are exempt from Labor Certification requirements. However, it is only if the US employer has a ‘qualifying relationship’ with a Company outside the US (i.e. parent/ subsidiary/ branch/ affiliate), with whom the manager / executive was employed for at least one year in the last three, in a managerial/ executive position, that the employee could qualify as an EB-1 Executive or Manager. The requirements are similar to an L-1 visa and so this category is most used by L-1A Managers/ Executives who decide to adjust their non immigrant status to that of an immigrant while working in the US.
This category covers aliens who have an exceptional ability in the sciences, arts, or business, as well as those aliens who are members of a profession holding advanced degrees or their equivalent.
- Exceptional ability aliens are considered those who have a degree of expertise above that ordinarily encountered in his/her field. Athletes may also be included in this category.
The INS requires at least three of the following types of evidences to establish exceptional ability:
- An official academic record showing that the alien has a degree, diploma or certificate from an institution of learning relating to the area of exceptional ability.
- Evidence in the form of letters from current or past employers showing that the alien has at least ten years of full-time experience in the related field.
- A license to practice the profession or occupation.
- Evidence that the alien has commanded a high salary or remuneration for services in commensurate with his/her exceptional ability.
- Evidence of membership in professional associations.
- Evidence of recognition for achievements and significant contributions to the related field by peers, governmental entities or professional/business associations.
The above factors are more applicable towards the sciences and business. Other comparable types of evidence may be submitted for the arts.
- Advanced Degree Professionals are defined as those who have a U.S. academic or professional degree (or its foreign equivalent) above a bachelor’s degree level. A bachelor’s degree plus at least five years of progressive experience in the specialty would be considered under the law to have the equivalent of a master’s degree. The DOL does not, however, accept this very easily and the employer must define precisely the terms and quantity of experience that qualifies as ‘progressive’. In the case of a requirement for a doctorate degree, only experience will not be counted and the alien must actually possess a doctorate degree.
The petition must be accompanied by:
- An official academic record showing that the alien has a U.S. bachelor’s degree or a foreign equivalent degree.
- An official academic record showing that the alien has a U.S. advanced degree or a foreign equivalent degree.
- Letters from current or past employers showing that the alien has at least five years of progressive post-baccalaureate experience in the related field.
a. A labor certification from the DOL.
In both cases, the employer offering the alien employment must file the petition on the Form I-140, except when the alien is seeking an exemption from the job offer requirement, in which case the alien may file the petition himself. For this exemption, the alien must show that his/her entry to the U. S. would be in the national interest of the United States.
This category, also called the catch-all category, covers aliens who are professionals with a baccalaureate degree, skilled workers with at least two years of experience and unskilled workers with less than two years experience, who can perform labor for which qualified workers are not available in the United States.
1. Professionals with a Baccalaureate Degree
For this group, the alien must hold a U.S. bachelor’s degree or its foreign equivalent, the job must require a minimum of a bachelor’s degree and he/she must be a member of the profession.
The petition which must be filed on Form I-140, must be accompanied by:
- An official record from the college/university showing the date the degree was conferred and the area of study.
- Evidence that a degree is required for that particular job.
- Evidence that the alien is a member of the profession by virtue of his/her education and experience
- Labor Certification from the DOL
2. Skilled Workers are defined as those who are capable of performing skilled labor and have at least two years of training or experience. A person who lacks a bachelor’s degree, but has enough experience to virtually be a professional, may apply for immigration under this group. To be classified as a professional under the rules, three years of experience is equivalent to one year of education, whereas the DOL holds that one year of experience is equivalent to one year of education. Either way, a minimum of two years is required for entry without a degree.
3. Unskilled Workers are defined as those who are capable of carrying out unskilled labor that requires less than two years of training or experience. This group has very few visas assigned to it and may take many years for the application to be approved.
For both skilled and unskilled workers, the employer must file the petition on Form I-140. This must be accompanied by a labor certification as well as evidence to show that the alien meets the educational, training or experience requirements.
Aliens who, for at least two years before applying for admission to the United States, have been a member of a religious denomination that has a non-profit religious organization in the United States, and who will be working in a religious vocation or occupation at the request of the religious organization.
This includes ministers and other persons who have been ordained to conduct religious worship and other duties by a recognized religious denomination as well as those who follow a religious vocation. A lay preacher does not qualify under this category.
Religious denomination means a group or community of believers who follow a particular creed, faith, discipline, form of worship, etc.
Religious vocation means calling to religious life such as taking vows for nuns, monks, etc.
This category has been created under the 1990 Act, for alien investors in new commercial enterprises. The qualification is based on the amount of investment and not on a job offer. However, the alien must play an active role in the investment (unless investing through a Regional Center).
No leftover visas are passed down from the higher employment based preferences to the investment category.
There two types of investors – those who invest $500,000 in economically depressed areas (known as ‘targeted employment areas’ and those who invest $1 million anywhere else. The enterprise must benefit the U.S. economy and must create employment for at least ten U.S. workers (not including the immediate family of the alien investor). Under the new Regional Center rules, employment creation can be direct or indirect making this route more attractive to potential investors.
A labor certification is not required for this preference group.
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The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between Jethmalani & Nallaseth and the viewer.