EMPLOYMENT
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.
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.
1) The U.S.
employer must provide the alien a full time, permanent job. The employer need
not be a U.S. owned company, but must have a subsidiary, affiliate or branch
office physically situated in the U.S., in which the alien will be working.
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)
2) 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
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.
3) 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.
4) 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. The INS 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.
5) The alien
and employer must both have the intent to undertake the employment
relationship.
This issue
is a difficult one to judge, but if the alien is over qualified or has been trained
in a totally unrelated field, the INS could deny the petition.
6) 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.
First Preference:
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 INS, 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.
Second Preference:
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.
1) 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.
2)
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
labor certification from the DOL.
In both cases, the
employer offering the alien employment must file the petition on the INS 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.
Third Preference:
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
INS 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 INS
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 INS 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.
Fourth Preference:
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.
Fifth Preference:
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.
No leftover visas are passed down from the higher employment
based preferences to the investment category.
There two types of investors – those who invest in
economically depressed areas (known as ‘targeted employment areas’ and those
who invest anywhere else. Normally, $1 million is required for the basic
investment. However, under the new law, the INS has the flexibility to raise
the figure up to $3 million in high employment areas and may lower it to
$500,000 in targeted employment areas.
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).
A labor certification is not required for this preference
group.
IMPORTANT NOTE: From January 1, 2002, the INS will only accept the new Form
I-140, that is one that bears a revision date of 8-30-01.
Click here to download the new Form I-140.
Related Links:
v
Immigrant Status Based on Employment
v
Provisions of the Immigration Act of 1990
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 The Law Offices of Cyrus S Nallaseth and the viewer.