Employment Visas

Most intending immigrants do not have the luxury of close relatives in the United States who can petition for them. Most do not qualify for asylum or any other immigration option. But for some, employment based "EB" immigration is a way into the U.S.

Still others, even though they are eligible to immigrate through other channels, may still accomplish their goals faster and more efficiently through employment-based immigration. This is the case when the other routes are clogged and back-logged.

Each year, 140,000 immigrants can enter the U.S. through employment based visas. As with the family preference system, the employment based system allows for pre set numbers in five separate categories. The first three of these categories are tied to immigrants' accomplishments, professions or skills. The fourth involves religious workers while the fifth is an investment route.

As of this writing the visa bulletin for November 2005 shows dramatic backlogs in many of the employment based preferences.

The immigration laws presume that nearly every occupation in the U.S. already has enough U.S. workers, and that foreign workers are therefore unnecessary. The vast majority of intending employment based immigrants are required to prove that this presumption does not apply to them. This most often involves a complex process called "Labor Certification".

In Order of Preference: First | Second | Third | Fourth | Fifth | Labor Certification

First Preference:

Extraordinary Aliens, Outstanding Professors & Researchers, Multi-National Executives and Managers (priority workers).

This elite immigration category, "EB-1", consists of three subcategories:

1. immigrants who are at the very top of their profession
2. certain professors and researchers
3. executives and managers of multi-national companies.

For immigrants who fall into this category, immigration can be a relatively easy matter. EB-1 immigrants enjoy several advantages over other employment based immigrants the main one being the fact that they get to bypass the Labor Certification Process.

First preference immigrants are allotted 40,000 visas annually plus any unused numbers left over from fourth and fifth preference employment based preferences.

Extraordinary Ability Immigrants

The "extraordinary alien" subcategory is reserved for immigrants who are among the top in their fields. These include scientists, educators, business people, athletes and others. To be eligible, one needs to have a sustained level of national or international recognition in one's field. "Extraordinary aliens" can immigrate even if they do not have a job offer, as long as they show that they will continue to work in their profession in the U.S.

Outstanding Professors and Researchers

This category is also exempt from obtaining a Labor Certification before applying for immigration. But unlike extraordinary aliens, they must have a job in the U.S. in order to immigrate. This job must be 1) a tenured position at an institution of higher learning; 2) a comparable position to perform research in a university; or 3) a research position at a private company that employs at least 3 full time researchers. The immigrant must have at least 3 years of experience in teaching or research.

Executive and Managerial Intracompany Transferees

This last preference category is reserved for international managers and executives coming to the U.S. to continue their work. To qualify an applicant needs to have been employed by the petitioning firm's branch, affiliate, parent or subsidiary abroad for one year out of the last three years prior to arrival in the U.S. They do not need to meet the Labor Certification requirement but must have a job offer in the U.S. to immigrate.

First preference employment based petitions are submitted to USCIS along with all its necessary supporting materials. The petition is filed at the USCIS regional service center with jurisdiction over the case.

Second Preference:

Professionals and Exceptional Ability Immigrants

The second employment based preference (EB-2) consists of two subcategories: 1) Professionals with advanced degrees; and 2) Persons of Exceptional Ability. Together these two subcategories are given an annual visa allocation of 40,000 places plus any numbers left over from first employment preference.

EB-2 immigrants must normally have a permanent full time job offer in the U.S. They usually must undergo the Labor Certification process. A rare few, who succeed in showing that their immigration would be in the 'national interest' can immigrate without job offers or Labor Certifications.

Professionals with Advanced Degrees

To qualify as a professional with an advanced degree, an applicant must have a Bachelor's degree or its equivalent, plus a Master's Degree or a Doctorate. Persons who have a Bachelors degree but no further formal education can also qualify in this category if they have 5 years of progressive experience in their professions. In these cases, the experience acts as an 'equivalency' for the missing advanced degree.

Immigrants with Exceptional Ability

Applicants without academic degrees can qualify under the Second Employment based Preference if they prove that they have 'exceptional ability' in their line of work. USCIS has specified the type of evidence that can be used to prove qualifications under this category and it is important that you consult with an immigration attorney to see if you fit into this highly specialized category.

National Interest Waivers

As mentioned before, EB-2 applicants who can show that their presence in the U.S. would be in the "National Interest" can immigrate without a job offer or Labor Certification. This 'waiver' can prove invaluable to qualified hopeful immigrants who have not yet found appropriate jobs or to those who cannot obtain labor certifications.

Several factors have been found relevant to whether the work to be performed by a prospective immigrant warrants a waiver. These factors include whether the work will improve the U.S. economy or the wages and working conditions of U.S. workers; whether the work will improve education; health care or housing for the underprivileged; and whether it will improve the environment or make better use of natural resources.

This category has been severely restricted in recent years and an immigrant trying to qualify has the burden of showing that 1) the interest served is 'substantial'; and 2) that it is 'national' in scope, and also, 3) that the strong equities of the case outweigh the need for labor certification.

Third Preference:

Professionals, Skilled Workers and Other Workers

This category is composed of three subcategories. The first and second of these correspond to "Professionals with Bachelor's Degree' and "Skilled Workers". The third EB-3 category belongs to 'unskilled workers' and is usually backlogged for years for all countries. Please note that the application process for EB-3 can be a deportation trap for most undocumented immigrants. See an immigration attorney familiar with EB-3 applications before filing for this benefit.

All EB-3 immigrants must have a permanent full time job offer in the U.S. In fact, it is the employer rather than the immigrant who files the petition.

The vast majority of immigrants in this category must also successfully pass the Labor Certification process. Only two professions are currently exempt from this process and those are schedule A occupations: professional nurses and licensed physical therapists. On the other side of this spectrum are schedule B workers such as porters, janitors, hotel cleaners, and electric truck operators, and they are considered 'oversupplied' with U.S. workers.

If you fall into schedule B occupations, the likelihood of successfully obtaining a labor certification is doubtful.

Skilled vs. Unskilled Workers

If the job is 'unskilled' the potential benefits of filing do not often warrant the risks. In immigration law, a 'skilled' occupation is defined as one which requires at least two years of experience. This means that regardless of how adept one is at a given occupation, if the job can be learned in less than two years, it is considered 'unskilled'. Examples of 'unskilled' are bartender, welder and typist. Skilled could be baker, welder inspector and paralegal.

Showing that a given job requires a 'skilled' applicant is only half the battle. One also must show that the immigrant has the required experience.

Fourth Preference:

Special Immigrant Religious Workers

Each year approximately 10,000 persons can immigrate to the U.S. through the Fourth Employment Based Preference - EB-4 or 'Special Immigrant' category. This catch all category includes ten separate subclasses of immigrants not covered by other categories. Best known among these is them is the 'religious workers' subclass.

Religious workers enjoy relaxed immigration eligibility requirements such as they do not have to apply for Labor Certification. They do however need to have a job offer in the U.S. In order to immigrate as a 'religious worker', an applicant must be coming to the U.S. to work for a non-profit religious organization and they must have worked for the two years prior to the filing of their petition for the same qualifying religious denomination. Not all types of religious workers are eligible to immigrate in the EB-4 category. Eligibility is limited to ordained or authorized ministers, religious professionals and religious vocational and occupational workers. Religious professionals include teachers and others whose jobs require a Bachelor's degree. Vocational workers include monks and nuns.

Fifth Preference:

Special Immigrant Investors

The Fifth Employment "EB-5" Preference is not purely employment based. It is actually an employment creation category and intended to encourage new investment in the U.S. and the new jobs which result.

Eligibility requirements include:

1. establishing and managing a new commercial enterprise in the U.S.
2. creating at least 10 full time jobs; and
3. investing at least one million dollars.

There are restrictions such as the investor, investors spouse and their children cannot be counted toward the ten employees and the applicants must show that the money they invest has been gained by legal means.

Labor Certification

There is a presumption in immigration law that most jobs and occupations in the U.S. are already oversupplied with workers and that new immigrants will take jobs away from the U.S. workers that need them. Immigrants in the Second and Third Employment Preferences must overcome this presumption: they must prove that the particular job being offered them is an exception to the general rule and that their skills are in short supply in the U.S. This is done by showing that U.S. workers either do not have the skills or training to perform the job, or that they do not want the job at the pay offered. This proof is accomplished by way of a process called "Labor Certification" which is a prerequisite to applying for an immigrant visa with INS.

The labor certification process requires a petitioner (the immigrant's employer) to conduct a 'recruitment' of potential job applicants in order to show a shortage of workers qualified for the job in its geographical region.

The labor certification process is typically very expensive. It can also be potentially perilous for the immigrant. Commencement of this process often results in the USCIS being notified that the immigrant is working in the U.S. without permission and that the employer has hired him or her without authorization. This can result in removal proceedings for the immigrant and fines for the employer.

The following must be considered before filing for Labor Certification:

• Is the job offered both permanent and full time?
• Is there proof that the immigrant has the necessary job experience (this does not include experience gained with the same employer)?
• Is the employer willing to pay the 'prevailing wage'?
• Can the employer show proof that their financial position enables it to pay the 'prevailing wage'?
• Will the recruitment process reveal a credible shortage of U.S. workers?
• Is the immigrant subject to the Bar to Admissibility? If he or she is subject to the Bar, one must ascertain whether a waiver is available and weigh carefully whether that waiver is likely to be granted.