Employment-based Immigration

For many, the first step in obtaining an employment based immigrant visa is through a labor certification application. A U.S. employer must undertake an extensive recruitment campaign in an effort to hire a U.S. worker. A successful labor certification application is one in which the employer is able to document the absence of any available, qualified U.S. worker as a result of that campaign.

After labor certification is received, or if the alien is exempt from labor certification under one of the exceptions, as set forth below, an employment-based immigration visa petition is filed with the Immigration and Naturalization Service. Once the petition is approved, the alien is ready to enter the final stage in the process.

If visas are not available because of backlogs, the alien is placed on a "waiting list" until a visa is available.

The Immigration and Nationality Act of 1990 (the "Act") created the following employment-based immigration categories:

Priority Workers

Priority Workers are defined as

1. aliens with extraordinary ability in the sciences, arts, education, business or athletics;
2. outstanding researchers and professors; and
3. multi-national executives and managers.

The first two subgroups are limited to a group of individuals who have achieved national or international acclaim and have reached the top of their profession. The third subgroup covers the same type of employee as is covered under the L-1 visa category. Labor certification is not required to hire a priority worker.

Aliens who are member of professions holding advanced degrees or aliens of exceptional ability in the sciences, arts, or business.

An advanced degree is any degree above a baccalaureate degree. An employee without an advanced degree can qualify if he has a baccalaureate degree and at least five years or progressive experience in his specialty. An employee has to satisfy at least three of the following criteria to establish exceptional ability:

• A degree relating to the area of exceptional ability;
• At least ten years of full-time experience in the area;
• A license to practice the profession;
• A high salary or other remuneration for services;
• Membership in professional associations; or
• Evidence of recognition for achievements or significant contributions in the area.

The labor certification requirement typically applies to this category, except if the alien qualifies "for a waiver of the job offer in the national interest." This exception necessitates a demonstration that the alien’s work in the United States will provide a future benefit to the United States through documentation relating to the alien’s level of expertise, professional accomplishments and field of endeavor.

Skilled workers, professionals and other workers

This category has three subgroups:

• Skilled worker - individuals capable of performing skilled labor (requires at least two years training or experience).
• Professional – an individual with at least a baccalaureate degree and who is member of a profession.
• Other worker – an individual capable of performing unskilled labor (requiring less that two years training or experience).

The labor certification requirement also applies to this category.

Employment Creation Immigrants

This category provides for visas for foreign investors entering the United States for the purposes of establishing a new commercial enterprise. As a general rule a capital investment of $1 million ($500,000 in certain geographic areas) will be required. The investment must create at least ten full-time jobs for U.S. workers, not including the investor and his or her family. Labor certification is no required in this category.

 

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