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The Preference System

immigration lawyers

 

A foreign national may permanently immigrate to the United States (receive a 'green card') if he or she fulfills certain conditions. The complexity in this type of immigration varies by the skill and experience and education of the intending immigrant as well as from what country that person will immigrate.


Each country has it’s own quota.

Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

When you file a preference petition with the Immigration & Naturalization Service or apply to the Department of Labor, you get assigned a Preference Category and a Priority Date.  You Priority Date is your number on the line. If your Priority Date is not current, you go to the end of the line. As time passes you get closer to the front of the line.  When your Priority Date is current, you will be at the front of the line and ready to complete the processing of your case.

 

FAMILY-SPONSORED PREFERENCES

 


First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference. 

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers: 

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; 

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation. 
 

Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences. 

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences. 

 

Employment-based immigration Overview

 

The process of obtaining employment-based immigration benefits is divided into classifications; labor certification, consular processing and adjustment of status.

Although labor certification is required in all but the first preference category, the applicant may, under certain circumstances, petition the Department of Labor to waive the labor certification requirement by filing a National Interest Waiver.

The Immigration Act of 1990 created five employment-based preference category.  Under current law, employment-based immigrants are allotted a maximum of 140,000 visas each year.

 

Employment Based Preference Categories

 

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 United States Citizenship & Immigration Service  (USCIS).

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.

 

Employment First Preference (E1) - No job offer Required

 

  1. 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 USCIS 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 USCIS.
  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 USCIS.

 

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.

Read more about investor visa.



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Moses Apsan and his staff, based in New York City and Newark, NJ provide exceptional legal services throughout the world, in all aspects of immigration to the United States, including non-immigrant (temporary visas), immigrant visa (Green Card) and deportation defense. In addition Mr. Apsan, has been practicing Bankruptcy law and Divorce laws for over 30 years, He was the President of the Federal Bar Association, New Jersey Chapter (1997-2002). He speaks Portuguese and Spanish..
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