The Immigration and
Nationality Act provides a yearly minimum of 140,000 employment-based
immigrant visas, which are divided into five classifications
known as preference categories. They may require a labor certification
from the U.S. Department of Labor (DOL), and the filing of a
petition with the Immigration and Naturalization Service (INS).
The first three preference categories are each
allotted approximately 40,000 visas annually plus certain allocations
from other preference groups. The last two categories are each
allotted approximately 10,000 visas annually. There is also a
"spill-down" provision which allows extra, unused visas
in any of the first three preference categories to be applied
against excess demand in any other of the first three preference
categories.
The classification of a preference group has
tremendous influences the complexity, cost and wait of the procedures.
The important factors influencing the difficulty of the process
include the demand for visas in each category, the number of visas
available in each category, whether the category requires labor
certification, and whether a National Interest Waiver is possible
under the circumstances.
1. Employment First Preference (E1) - No job offer
Required
Within this preference there are three sub-groups: Persons of
extraordinary ability in the sciences, arts, education, business,
or athletics. Applicants in this category must have extensive
documentation showing sustained national or international acclaim
and recognition in the field of expertise. Such applicants do
not have to have a specific job offer so long as they are entering
the U.S. to continue work in the field in which they have extraordinary
ability. These applicants can file their own petition with the
INS, without the need of an employer an employer.
2. Outstanding professors and researchers with at least
three years experience in teaching or research, who are recognized
internationally. No labor certification is required
for this classification, but the prospective employer must provide
a job offer and file a petition with the INS.
3. Certain L-1 visa executives and managers who have
been employed at least one of the three preceding years by the
overseas affiliate, parent, subsidiary, or branch of the U.S.
employer. The applicant must be coming to work in a
managerial or executive capacity. No labor certification is
required for this classification, but the prospective employer
must provide a job offer and file a petition with the INS.
Employment Second Preference (E2)
Professionals Holding Advanced Degrees, or Persons
of Exceptional Ability in the Arts, Sciences, or Business . All
Second Preference applicants must have a labor certification approved
by the DOL, or Schedule A designation, or establish that they
qualify for one of the shortage occupations under the Reduction
in Recruitment process (discussed later). A job offer is required
and the U.S. employer must file a petition on behalf of the applicant.
Aliens may apply for exemption from the job offer and labor certification
if the exemption would be in the national interest, in which case
the alien may file the petition, Form I-140, along with evidence
of the national interest. There are two subgroups within this
category: Professionals holding an advanced degree (beyond a baccalaureate
degree), or a baccalaureate degree and at least five years progressive
experience in the profession; and Persons with exceptional ability
in the arts, sciences, or business. Exceptional ability means
having a degree of expertise significantly above that ordinarily
encountered within the field.
Employment Third Preference (E3)
This group includes skilled Workers, Professionals
Holding Baccalaureate Degrees and Other Workers. This is the category
that most people file under. All Third Preference applicants require
an approved I-140 petition filed by the prospective employer.
All such workers require a labor certification, or Schedule A
designation, or evidence that they qualify for Reduction in Recruitment
(RIR). There are three subgroups within this category:
1. Skilled workers are persons capable of performing a
job requiring at least two years' training or experience.
2. Professionals with a baccalaureate
degree are members of a profession with at least a university
bachelor's degree.
3. Other workers are those persons capable
of filling positions requiring less than two years' training or
experience.
Employment Fourth Preference (E4)
These are called Special Immigrants. There are
six subgroups:
1. Religious workers coming to carry on the vocation of a minister
of religion, or to work in a professional capacity in a religious
vocation, or to work for a tax-exempt organization affiliated
with a religious denomination.
2. Professionals with a baccalaureate degree
are members of a profession with at least a university bachelor's
degree.
3. Former employees of the Panama Canal Company.
4. Retired employees of international organizations.
5. Certain dependents of international organization
employees.
6. Certain members of the U.S. Armed Forces.
Employment Fifth Preference (E5) - Investor
To qualify, an alien must invest between U.S.
$500,000 and $1,000,000, depending on the employment rate in the
geographical area, in a commercial enterprise in the United States
which creates at least 10 new full-time jobs for U.S. citizens,
permanent resident aliens, or other lawful immigrants, not including
the investor and his or her family. |
