Employment-Based Immigration

General Information

The annual amount of persons allowed to immigrate based upon employment related applications is capped at 140,000 persons.
Of this amount, approximately 40,000 slots are allocated to each of the First, Second and Third preferences.

The First Preference category includes the following: (1) extraordinary persons, (2) outstanding professors and researchers, and (3) executives and managers transferring from abroad with multinational companies.
A Second preference category is reserved for persons of exceptional ability in the sciences, arts or business, and professionals who hold advanced degrees.
The Third Preference category includes skilled workers (with two or more years of work experience), professionals who hold baccalaureate degrees and other (unskilled) workers.
Only 10,000 of the possible 40,000 in this category are available to the unskilled worker category. In order to be included in the category of Professional, the alien must actually hold a baccalaureate degree. In order to qualify for the Professional category, the alien may not substitute a certain amount of work experience as the equivalent of a degree.

Procedure for Labor Certification

In general, it must be determined that there are not sufficient US workers who are willing, able and qualified to be employed at the place where the alien is proposed to be employed. It must be shown that the employment of the alien will not adversely affect the wages and working conditions of workers in the United States that are similarly employed.

The employer must actively recruit and advertise the job through a job posting, an advertisement and a state job bank. The employer must post a notice of the position's availability at the place of business for 10 consecutive working days or notify the union. An employment ad must be placed in a newspaper of general circulation for three days and be placed in trade papers when this is necessary. The advertisement must also be placed by the local employment office in a statewide job bank.

If the employer is a large, well-known employer, the INS will not ask for separate evidence of the ability to pay
* When the employer's taxable income is at least as large as the offered wage, the INS assumes the company has enough to cover the wage
* When the employer's taxable income is either negative or less than the offered wage, and the alien is not already working for the petitioner, but the balance sheet of the employer shows that the ratio of assets to liabilities is sufficiently favorable, it can be assumed that the employer can afford the employee. 

Permanency of Position

Another requirement for third preference skilled and unskilled workers is that the immigrant is coming to the United States to engage in work which is neither temporary nor seasonal. This sort of permanent employment may be required of third preference immigrants also, by way of the labor certification requirement. The employer should therefore state that he or she has a continuing need for the alien's services. The INS may therefore deny a visa petition, even if a labor certification has been issued, upon discovery that the job was to be of a temporary nature. 

Alien's Intent

At the time of the alien's entry, the alien must be shown to be intending on taking on the occupation or job that he is applying under. In most cases, the INS will not deny a petition for this reason unless they are aware of evidence that shows that the alien does not intend to take the job offered. For instance, factors that may lead to this conclusion are that the alien is clearly overqualified or has training in a completely unrelated field. If the required intent is not contained within the petition, for instance, in a declaration by the alien, the petition will be denied. However, unless the alien is proven to have had "bad faith," there is no time requirement of how long the alien must remain on the job. 

Alien's Qualifications

The alien must be qualified for the job at the time of filing the petition, as judged by the INS. The INS may request advisory opinions from other agencies to determine an alien's qualifications, however if this advisory opinion is adverse, the applicant alien must be given a reasonable opportunity to rebut the opinion. 

First Preference

"Priority Workers"

There are three groups of priority workers, and each group has equal access to the annual allotted visas. The labor certification requirement does not apply to the 1st preference category, and so the processing time for this category is much shorter than the others.

The three groups of priority workers are:

1) Managers and executives subject to international transfer to the U.S. There is no labor certification required for this preference category.

2) Outstanding professors and researchers with university or private employers that have established research departments.

3) Aliens of "extraordinary ability" in the sciences, arts, education, business and athletics. 

Aliens of Extraordinary Ability

There is no labor certification required, nor does there have to be a job offer. This ability must be demonstrated through sustained national or international acclaim and must be extensively documented. The alien's entry into the United States must prospectively serve to substantially benefit the U.S. The same documentation can be used to prove this as is used to prove that the alien is continuing to work in her field of ability. 

The INS regulations have defined "extraordinary ability" as those who have reached a "level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor." The alien can prove such acclaim through national acclaim, and does not have to have international recognition. The alien should be judged by the standards in their own country as to level of recognition and salary level attained. 

The extraordinary ability alien must be coming to the U.S. to continue work in the field in which she has that extraordinary ability, and the INS requires that the alien submit clear evidence that she is planning to continue her work in the U.S. through letters, prearranged commitments, statements or contracts.

The INS has taken the position that members of professions are not eligible as aliens of extraordinary ability. A professional might qualify, however, as a scholar with great distinction in the preference category of outstanding professor or researcher.

Evidence of Extraordinary Ability:

1) If the alien has received an internationally recognized award, this is, in and of itself, evidence of extraordinary ability. These types of awards include such awards as the Nobel Prize or an Academy Award.
2) Absent receipt of such an award, the alien must submit at least three of the following types of evidence (however, the INS may require additional evidence when the evidence presented is that which is typically achieved in that occupation):
a) Documentation of the receipt of lesser awards of national or international recognition for excellence in their field.
b) Documentation of membership in association in the field which require outstanding achievement for membership, as judged by experts in the field. 
c) Published material in professional or major trade publications (published material must include title, date, author, and be translated if necessary)
d) Evidence of participation as a judge of the work of others in the same or similar field of specialization
e) Evidence of original contributions of major significance to the field
f) Evidence of the authorship of scholarly articles in the field
g) Evidence of the display of the alien's work at exhibitions in more than one country
h) Evidence of performance of a lead role in distinguished organizations or establishments
i) Evidence of having attained a relatively high salary or other compensation for services
j) Evidences of commercial success in the performing arts
k) Other comparable evidence if those listed do not readily apply to the alien's occupation
3) Another basis of determining whether an alien is at the top of her field is to present evidence that provides a basis for comparison between that alien and those who are at a typical level of achievement in that field
4) Quality of the Documentation: 

Evidence considered to be of little value includes:
a) publications in a "vanity press"
b) a footnoted reference to an alien's work without evaluation
c) a listing in an index of the alien's work
d) a neutral review

Evidence that carries substantial weight includes:
a) presentations that are reviewed by those in the field
b) articles in scholarly journals that are reviewed by peers
c) scholars describing the alien's contribution to the field
d) citations which point to the alien's work as authoritative
e) participation as a reviewer for a scholarly journal
f) instrumental in the direction of thesis review

Expert testimony regarding how the alien has set himself apart from others in his field may be helpful, unless it merely establishes competence (then it may be used against the alien to deny her petition). 

Outstanding Professors and Researchers

This group includes those who have:
1) achieved recognition internationally as outstanding in a particular academic field
2) at least three years teaching experience or research in the field AND
3) achieved an offer of a tenured-track position or its research equivalent OR
4) the offer of a research position where the alien has an expectation of full-time employment OR
5) the offer of a comparable research position with a private employer if the employer is accomplished and employs at least three full-time researchers

The employer must submit proof that they are offering the alien employment of a qualifying nature, proof that the alien has the required credentials and proof that the alien is outstanding in a particular academic field.

In order to prove international recognition, at least two of the following types of evidence must be submitted:

1) the alien's receipt of international awards
2) documentation of membership in organizations which require outstanding achievement of their members
3) published materials in professional publications (must include the title, date, author, and be translated)
4) evidence that the alien participated in judging the works of others in related fields of expertise
5) evidence of the alien's original contributions to that field
6) evidence of authorship of scholarly books or articles in internationally circulated journals

Managerial or Executive Transferees

Since labor certifications for this category of immigrant are not required, visas should be immediately available for these types of aliens.

Definitive Characteristics:
1) The alien must have been employed for at least one year of the preceding three, by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer in a managerial or executive capacity.
2) The alien must be coming to work in the U.S. in a managerial or executive capacity.
3) "Managerial Capacity" requires:
a) management of an organization or function
b) supervision and control of personnel or an essential function
c) authority to make personnel decisions or functioning decisions at a senior level
d) discretion over operations or functions
4) "Executive Capacity" requires:
a) management of an organization or function
b) authority to establish goals or functions
c) discretion in decision-making
d) only general supervision from others
5) The U.S. employer must have been doing business for at least one year.
6) An executive or manager already in the U.S. may qualify for this group
7) If the employee frequently travels back and forth between the U.S. and the foreign country, the INS will look to the principal place of business to determine if the employee has met the one-year requirement.
8) The U.S. employer must file the application on Form I-140 (Immigrant Petition for Alien Worker).

Please see the rules regarding L-1 nonimmigrant rules, since the rest of the details regarding this category are the same as for the L-1 petitions. (LINK)

Second Preference

Each of the following two categories of aliens have equal access to the available 40,000 visas:

1) Aliens of "exceptional ability" in the sciences, arts or business
2) Advanced degree professionals

A labor certificate and a job offer are required unless the job offer requirement is waived by the INS based on the national interest waiver. Backlogs for visas in this category have not yet developed, except for natives from India, because of high numbers of such applicants.

Exceptional Ability Aliens

The following Requirements have to be met:

1) the alien must have a degree of expertise above the norm in their field
2) possession of a degree or license to practice a profession may not be sufficient 
3) athletes are considered aliens of exceptional ability in the performing arts 

Evidence of Exceptional Ability:

The INS requires that at least three of the following types of evidence be produced to establish exceptional ability:

a) an official academic record showing that the alien has a degree or similar award in the area of exceptional ability
b) evidence from current or former employers that shows ten years of full-time work experience in the occupation for which they are immigrating
c) a license or certification to practice that particular profession
d) evidence that the alien has received compensation which demonstrates exceptional ability
e) membership in professional associations
f) evidence of recognition or achievement in the particular field
g) other comparable types of evidence for the particular field
h) evidence of the job offer (unless the national interest waiver is established)

National Interest Waivers

The "national interest exemption" is a much higher standard than the requirement of "national benefit" to be classified for "exceptional" status. Several factors were suggested to be considered in whether a person meets the requirements for a national interest waiver:

1) improving the U.S. economy
2) improving wages and working conditions for U.S. workers
4) improving education and programs for U.S. children and underqualified U.S. workers
5) improving health care
6) providing more affordable housing
7) improving the U.S. environment and making more productive use of natural resources
8) interested government agency request
9) whether the alien seeks employment in an area of substantial intrinsic merit
10) whether the proposed benefit will be national in scope
11) whether the national interest would be adversely affected if a labor certification were required

Basically, the alien must possess unique knowledge, abilities or experience that set the alien apart from others in their field, and the alien must establish that she will use these abilities in order to significantly benefit the field in which they are proficient.

Examples of cases which have qualified under the "national interest" exemption include: engineers, musicians, newspaper publishers, geologists, nutritional counselors, psychiatrists, dance instructor-performers, artists, biologists and doctors.

When a national interest waiver was based upon the applicant's work with a particular employer, if that employer no longer was willing or able to hire the applicant, the petition would no longer be valid. However, where such a waiver was obtained based on the particular industry the applicant would contribute to, and another employer could utilize these services, the petition is still valid.

Advanced Degree Professionals

"Profession" is defined as an occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into that field. 

The aliens must also be engaged in such a profession to qualify for second employment-based preference. 

An "Advanced Degree" is defined as any U.S. academic or professional degree (or its foreign equivalent) above a bachelor's degree level. 

The employer must satisfy the job offer requirement unless this requirement is waived in the national interest. See above.

Supporting Documentation:

1) an official academic record that shows a U.S. advanced degree or its foreign equivalent OR
2) an official academic record of a bachelor's degree (or its foreign equivalent) and letters from current or former employers that the alien has five years progressive work experience in the field
3) labor certification (unless the job offer requirement is waived)

Third Preference

1) Professionals with bachelor's degrees not qualifying in the second preference
2) Skilled workers filling positions requiring at least two years of training and experience
3) Unskilled workers

Members of Professions with a Degree

The statutory definition includes but does not limit the category of professionals, to include architects, engineers, lawyers, physicians, surgeons and teachers. Professional is defined by the INS as a qualified alien who holds at least a U.S. baccalaureate degree or a foreign equivalent degree and who is a member of the professions or another such occupation that has a minimum requirement of a baccalaureate degree. The INS further requires proof that the job involved requires a minimum of a baccalaureate and evidence of the alien's qualifications. 

Although experience cannot be substituted for the degree, the degree does not have to be specifically related to the professional field. This becomes less significant in that the classification for professional and for skilled workers are within the same visa category and so if an alien is not eligible for one category, they will be considered under the other category. The sub-categories are not mutually exclusive.

The petition filed by the employer must be filed on the Form I-140 (Immigrant Petition for Alien Worker), and be accompanied by:
a) an official college or university record showing the date the degree was granted and the substantive area of study
b) evidence that a bachelor's degree or higher is required for entry into the profession
c) letters showing the alien is a member of that profession, describing her training and/or experience
d) a labor certification

Skilled and Other (Unskilled) Workers

Unlike the distinction between professional and skilled worker, whether an alien is classified as a skilled or an unskilled worker is very significant. This is so since the "other worker" category is limited to 10,000 visas, and while the other categories remain current within six months of the effective date, workers in the "other" category often wait for several years, to be considered. The current waiting list for third preference unskilled workers stretches for twenty years or more for cases started today.

Skilled workers are required to be capable of doing work that requires at least two years of training or experience, at the time they file the application. Therefore, the minimum requirements set out by the employer on the labor certification application are critical to proper classification of the alien. Post-secondary education here is considered training for this specific purpose. If a labor certification has been obtained, the terms of the job offer will be controlling. Otherwise, the petition must establish that the job requires at least two years of training/experience.

Application Procedure

Completing the Application for the First Three Employment-Based Preferences

The alien's U.S. employer must file the following with the appropriate INS Service Center:

1) INS Form I-140
2) If the Labor Certification requirement applies to the second or third employment-based preference, either
a) the approved labor certification OR
b) Form ETA 750, Parts A and B in duplicate and uncertified by the DOL and supporting documentation showing qualification for pre-certification OR
c) Form ETA 750, Parts A and B in duplicate and uncertified by the DOL and documents supporting the waiver of the job offer requirement and labor certification requirement, in the national interest
d) Employer's letter supporting the petition
e) Supporting documents regarding ability of the employer to pay the alien's wages
f) Supporting documents required for that preference
g) Supporting documentation that the alien meets the job requirements
h) Filing Fee of $115