The Preference System
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.
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
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:
Employment Fourth Preference (E4)
These are called Special Immigrants. There are six subgroups:
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.