Business Immigration

Permanent Employment-Based Immigrant Visas

Several different varieties of employment-based immigrant visas are available. Eligibility for all of these is contingent on an employer’s ability to show that there are no U.S. workers available to fill the particular job for which you are being hired through a process called labor certification. The intent of this policy is to protect U.S. workers by ensuring that U.S. citizens have maximum access to the job market.

The employer will have to file an application for “labor certification” with the Department of Labor that demonstrates that there are no U.S. workers able, willing and qualified to fill the position the employer is offering. An employer can demonstrate this by, for example, advertising the position in local or national newspapers or trade journals and showing that no suitable U.S. workers applied for the job. The employer filing the petition must also be able to show the financial ability to pay the offered wage and that the employee meets the minimum requirements to perform the job satisfactorily. Once the labor certification is approved, it is submitted to USCIS. This submission constitutes your employer’s request to hire you for the position. After obtaining the approval of USCIS, you must file an application to either “adjust” your status if you are already in the U.S. (this is filed with USCIS) or obtain an immigrant visa if you are abroad (this is filed with the U.S. Consulate).

Employment-based immigration is divided into 5 classes, each with its own requirements and annual limits on the number of visas available. Please note that there is no significance to the order in which the preferences are listed – for example, fifth preference visas are actually easier to come by than first preference visas.

FIRST PREFERENCE (Priority Workers)

  • Aliens with extraordinary abilities in the sciences, arts, education, business or athletics. Their achievements must have been recognized nationally or internationally in the field through extensive documentation. Aliens seeking to immigrate under this category do not require labor certification or even an offer of employment.
  • Outstanding Professors and Researchers — Persons seeking entry as immigrants under this category must be internationally recognized as outstanding in a specific academic area and must have at least 3 years of experience in research or teaching in their field. This category requires an offer of employment in the form of a letter but does not require labor certification.
  • Certain multinational executives and managers — Persons seeking entry as immigrants under this category must meet a similar standard to an “L-1” executive or manager. This category does not require an approved labor certification.

SECOND PREFERENCE (Exceptional Ability and National Interest Waivers)

  • Advanced degree holders and aliens of exceptional ability— This category includes workers with advanced degrees or their equivalent and workers with exceptional ability in the sciences, arts, or business, whose contributions will substantially benefit the national economy, or cultural or educational interests or welfare of the U.S.
  • If an applicant’s skill is in the national interest, the individual is not required to have a specific job offer and will be exempt from the requirement of labor certification. National interest waivers are granted if it can be shown that the alien will benefit the U.S. economy, improve wages and working conditions for U.S. workers, improve education and programs for children and under-qualified workers in the U.S., or improve the environment.

THIRD PREFERENCE

  • Skilled workers: People falling into this category require at least two years of training or experience. They must also obtain labor certification.
  • Professionals: People eligible for this visa category must possess a bachelor’s degree or its foreign equivalent and must demonstrate that the degree they hold is the typical requirement for entry into the profession. In this case, experience does not compensate for a lack of education.
  • Other workers: This category of visa is available to unskilled laborers with less then two years of training and experience.  The waiting period for these visas is up to ten years.

FOURTH PREFERENCE

  • Special Immigrants: This category of visa is available to people who are seeking reacquisition of citizenship, returning residents, religious workers, U.S. employees abroad or employees of American Institute in Taiwan for 15 years, and Panama Canal Treaty employees, etc.

FIFTH PREFERENCE (EB-5)

  • Employment Creation (Investors in the U.S.)– This category allows conditional residency for persons who invest $1,000,000 (or, under certain circumstances, $500,000) in a new commercial enterprise that employs ten full time U.S. citizens or permanent residents who are not family members of the investor. People granted visas for this category are given two-year conditional resident status and can file for the removal of conditional residency before the second anniversary of being granted the visa.