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Employment-Based Immigration

Written by Henry J. Chang

The employment-based immigration categories are referred to as such because they are based on a foreign worker's particular occupation and skills. The employment-based categories consists of five preference categories, each of which are subject to visa waiting lists similar to those discussed in the context of family immigration. The first preference consists of priority workers, the second preference consists of professionals holding advanced degrees and persons with exceptional ability and the third preference consists of professionals, skilled workers and other workers. The fourth preference consists of special immigrants which are not discussed and the fifth preference consists of the immigrant investor category which is discussed in a separate article.

Employment-based categories are subject to annual visa limits. This means that there are waiting lists in many of the categories. Available visas are issued to beneficiaries in order of their priority date (the date of filing of the labor certification, if one is necessary, or the date of filing the I-140 petition.) To see the applicable priority dates for each employment-based category, click here.

Beneficiaries of India, China, The Philippines, and Mexico are subject to country-specific backlogs. However, the enactment of the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21") on October 17, 2000 will assist employment-based beneficiaries who are subject to these annual visa limits. If, in a calendar quarter, there are more visas available in all the employment-based preferences than the number of qualified immigrants who may be issued such visas, then the visas may be made available without regard to country of origin or the per-country ceilings. The provision helps nationals of India, China, The Philippines, and Mexico who are oversubscribed in the employment-based first, second or third preferences, because it allows unused visas to "spill over" to them.

The First Preference (EB-1)

The first preference category requires no labor certification as a condition of visa issuance. In other words, persons falling under the first preference category are not required to establish that they are no qualified U.S. workers available for the proposed position. Detailed information concerning labor certification appears here.

The first preference consists of three subgroups, each with different requirements for eligibility: (a) persons of extraordinary ability, (b) outstanding professors and researchers, and (c) multinational executives and managers. Although these subgroups are discussed in detail elsewhere in the U.S. Immigration Handbook, the basic requirements of each are as follows:

  1. Persons applying under the first subgroup are not required to have a job offer but must possess extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.

  2. Persons applying under the second subgroup must be internationally recognized as outstanding in their specific academic area, have a minimum of three years of experience in teaching or research in the area and be entering the U.S. in a tenure or tenure track teaching or comparable research position at an institution of higher education.

  3. Persons falling under the final subgroup must have been employed as a manager or executive outside the United States for the same U.S. employer, subsidiary or affiliate of the U.S. employer for at least one year within the last three. They must also be entering the United States to work as a manager or executive of the U.S. employer.

The Second Preference (EB-2)

The second preference category includes: (a) members of the professions holding advanced degrees and (b) aliens who, because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.

To qualify as a member of the professions the alien must have an advanced degree, which the INS takes to mean "any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate.'' This essentially means a United States masters degree or above. The INS has indicated that a U.S. or equivalent foreign baccalaureate followed by at least five years of progressive experience in the specialty will be the equivalent to a masters degree. If the profession requires a degree higher than a masters, the alien must have that degree.

The word "exceptional" in the context of this category means that the individual must have a degree expertise significantly above that ordinarily encountered. To qualify as an alien of exceptional ability for the purpose of second preference classification, the individual must have a degree of expertise significantly above the ordinary as shown by evidence satisfying at least three of the following criteria which appear at 8 CFR §204.5(k)(3)(ii):

  1. An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;

  2. Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;

  3. A license to practice the profession or certification for a particular profession or occupation;

  4. Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;

  5. Evidence of membership in professional associations; or

  6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

Under 8 CFR §204.5(k)(3)(iii), if the above standards do not readily apply to the beneficiary's occupation, comparable evidence may be submitted to establish eligibility.

Under this category, the foreign worker must have a job offer and obtain a labor certification for the proposed position. However, it is possible to avoid the requirement of a labor certification or job offer in certain cases. The alien may seek an exemption from the labor certification (but not the job offer requirement) under Schedule A, Group II of the Department of Labor regulations. Precertification under Schedule A, Group II is discussed elsewhere in the U.S. Immigration Handbook. Alternatively, if it can be shown that the alien's admission would be in the national interest, it is possible to obtain a waiver of both the job offer requirement and the labor certification requirement. This is known as a "national interest waiver". National interest waivers are discussed elsewhere in the U.S. Immigration Handbook.

The Third Preference (EB-3)

The third preference consists of skilled workers, professionals and "other workers". Skilled workers are those whose positions require a minimum of two years of training or experience. Professionals must possess a bachelor degree in the field and must establish that a bachelor degree is the normal requirement for entry into the profession. The final category of "other workers" means essentially unskilled workers.

Professionals and skilled workers are placed on the same waiting list for available visas. However, other workers are placed on a separate waiting list. Given the fact that backlog for "other workers" is effectively twenty years, the filing of such a petition for an unskilled worker is not recommended.

Third preference workers must have a job offer and obtain a labor certification. However, where Schedule A precertification applies, the alien will be exempt from the labor certification requirement. Schedule A precertification is discussed elsewhere in the U.S. Immigration Handbook.

New Affidavit of Support Requirement for Certain Employment-Based Cases

§531 of the Illegal Immigration and Immigrant Responsibility Act of 1996 ("IIRAIRA") amended INA §212(a)(4) to require certain aliens immigrating through one of the family-based categories to obtain a legally binding affidavit of support as a condition of admission. The affidavit of support will be required in any employment-based case where the petitioner is a relative of the beneficiary, or an entity in which a relative has a significant ownership interest.

Section §551 of IIRAIRA amends INA §213A to make affidavits of support legally enforceable for at least 40 qualifying quarters (effectively 10 years) or until the beneficiary has become a U.S. citizen. Sponsors signing the affidavit must be at least 18 years old, domiciled in the United States, and able to support both the sponsorís and the immigrantís families at an annual income level equal to at least 125 percent of the federal poverty guideline. An exception exists for active duty service members petitioning for their spouse or child, who may qualify if they are able to support the sponsored immigrant(s) at 100 percent of the poverty guideline. Sponsors must notify the INS whenever they move during the effective period of the affidavit, and are subject to significant monetary penalties for non-compliance.

The new affidavit of support becomes effective on December 19, 1997. Additional information appears in the family-based immigration article.

Portability of Labor Certifications and Immigrant Petitions

Until recently, a labor certification and employment based petition was considered specific to the petitioner. If the alien changed jobs or employers, the labor certification and petition were no longer considered valid.

AC21 now provides that an immigrant petition for an individual shall remain valid with respect to a new job if the individual changes jobs or employers. However, the alien's application for adjustment of status must have been filed and remained unadjudicated for 180 days or more. The new job must also be in the same or a similar occupational classification as the job for which the petition was initially filed. This portability provision does not apply to beneficiaries of EB-1 extraordinary ability petitions, most likely because Congress assumed that such petitions already are portable.

This provision appears to apply only in the context of adjustment of status, not consular processing.

Dependents of Employment Based Beneficiaries

The dependent spouse and child of an employment-based beneficiary are considered derivative beneficiaries. They are therefore eligible for lawful permanent residence under the same employment-based preference category as the principal beneficiary.

To qualify as derivative beneficiaries, dependent children must be unmarried and under age 21. However, the provisions of the Child Status Protection Act provide some protection to ensure that such children do not lose their eligibility if they reach 21 before they have completed processing of their immigrant cases. The Child Status Protection Act is discussed elsewhere at this web site.

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