Each fiscal year (October 1st – September 30th), the U.S. government makes 140,000 employment-based immigrant visas available to qualified applicants under the applicable provisions that govern U.S. immigration law. Employment-based immigrant visas are divided into five preference categories, and certain spouses and children may accompany or “follow-to-join” the employment-based immigrant that they have a relationship with. Employment-based immigration is one of the more complex areas of immigration law and it is best to use an experienced attorney in a matter involving employment-based immigration to help guide you through the process.
Obtaining an Immigrant Visa
Labor Certification and the PERM Process
Under U.S. immigration law, permanent labor certification by the United States Department of Labor is required for certain employer-sponsored permanent residency applications. A common example of this is an application for a Green Card. In its application for this certification, an employer must prove that there are no available, willing, and able U.S. workers that it can hire for the position, and that employing the non-citizen applicant will not have an adverse effect on the wages and working conditions of other U.S. workers who are in similar positions.
The Department of Labor issues labor certifications for foreign nationals based on strict criteria. Congress has established these criteria in an effort to protect the rights of foreign workers, protect the rights of similarly qualified U.S. workers, and to create opportunities for employers to hire qualified foreign labor if they can’t find a U.S. citizen to perform the desired job functions.
Employers who file for labor certification must complete the Program Electronic Review Management process, or PERM as it is more commonly known. PERM uses an electronic platform through which the government receives and processes labor certification applications. Employers use the system to attest to the veracity of their application and the government checks and confirms their statements.
If the Department of Labor certifies the labor certification application, the employer and foreign national can continue the permanent residency process by submitting the appropriate documentation to the United States Citizenship and Immigration Services agency.
Different Employer-Based Immigration Categories
There are five different employer-based immigration categories. As employer-based immigration is a complex area, we encourage you to speak with an experienced attorney like Ms. Mona Tehrani, who can provide additional guidance and assist you in this process.
(1) First Preference: EB-1 Visas for Priority Workers
EB-1 visas are issued to the following three types of individuals:
- Individuals with extraordinary ability in the sciences, arts, business, education, or athletics. These individuals must have documentation showing sustained national or international acclaim and recognition in their areas of expertise. They also do not have to have specific job offers as long as they are entering the U.S. to continue working in the fields in which they have extraordinary ability.
- Individuals who are outstanding professors and researchers and have at least three years’ experience in teaching or research, and are also recognized internationally. These individuals must be coming to the U.S. to pursue tenure, tenure track teaching, or a comparable research position at a university or other institution of higher learning.
- Individuals who are multinational managers or executives and have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The individual’s employment outside of the U.S. must have been in a managerial or executive capacity, and they must be coming to work in the U.S.
Priority Workers receive approximately 28% of the annual worldwide limit of employment-based immigrant visas and do not need to have a labor certification either.
(2) Second Preference: EB- 2 visas for Professionals Holding Advanced Degrees and Persons of Exceptional Ability
EB-2 visas are issued to professionals who have an advanced degree or its equivalent. The equivalent of an advanced degree is any degree above a baccalaureate degree, or a baccalaureate degree and at least five years of progressive experience in the profession.
EB-2 visas are also issued to individuals with exceptional ability in the sciences, arts, or business. Exceptional ability is defined as having a degree of expertise significantly above the level that is ordinarily encountered in the sciences, arts, or business.
(3) Third Preference: EB-3 Visas for Skilled Workers, Professionals, and Unskilled Workers (Other Workers)
EB-3 visas are issued to skilled workers, professional, and unskilled workers, or other workers as they are also called. Skilled workers are applicants whose jobs require a minimum of 2 years training or work experience that are not temporary or seasonal. Professionals are members of a profession whose jobs require at least a baccalaureate degree from a U.S. university or college, or an equivalent foreign degree. Lastly, unskilled workers (i.e., other workers) are individuals who are capable of filling positions that require less than two years training or experience and are not temporary or seasonal.
(4) Fourth Preference: E4-1 Visas for Certain Special Immigrants
EB-4 visa for certain special immigrants are issued to religious workers, certain long-time employees of the U.S. government, and to citizens of Iraq or Afghanistan who have worked for the U.S. Armed Forces as a translator for at least one year.
(5) Fifth Preference: EB-5 Visas for Immigrant Investors
EB-5 visas were established to create U.S. jobs by attracting foreign investment to the United States, and they allow certain foreign investors to become permanent residents. To obtain an EB-5 visa, the applicant must make an investment of at least $1 million, or $500.000 in high unemployment or rural areas, in a commercial enterprise that will employ at least 10 full-time employees. The investment funds can be held in escrow and released only after the foreign citizen’s permanent residency application has been approved.
Foreign investors can also choose to invest in pre-approved Regional Centers. A Regional Center is defined as “any economic entity, public or private, which is involved in the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment.”