Every fiscal year (October 1st – September 30th), approximately 140,000 employment-based immigrant visas are issued to qualified applicants, allowing them to become lawful permanent residents. There are several categories of visas leading to employment-based green cards, some of which have substantial waiting lists. This is because many more people seek these visas than the number allotted. Certain categories, such as priority workers (EB1), special immigrants (EB4), and investors (EB5), rarely, if ever, have waiting lists. Other categories, such as “Other workers,” have backlogs of many years. The US State Department publishes a visa bulletin each month announcing the date of applications that are currently being processed, giving a general idea of the length of the backlog.
Labor Certification and Filing a Petition
To be considered for most employment-based immigrant visas, the applicant’s prospective employer must first obtain a labor certification approval from the Department of Labor. As part of the labor certification process, the employer must show that there is a bona fide job offer, that the employer has attempted to recruit US workers for the position and that the employer is paying the prevailing wage. After the labor certification application has been approved, the employer then files an Immigrant Petition for Alien Worker, Form I-140, with the U.S. Citizenship and Immigration Services (USCIS) for the appropriate employment-based preference category. (NOTE: EB1, EB4, and EB5 visas do not require labor certification.)
Employment First Preference (EB1): Priority Workers
A First Preference applicant must be the beneficiary of an approved Immigrant Petition for Foreign Worker, Form I-140, filed with USCIS. A labor certification is not required for this class.
There are three sub-groups within this category:
1. Persons with extraordinary ability in the sciences, arts, education, business, or athletics. This type of immigration benefit is very restrictive and is only granted to individuals who have risen to the top of their field of expertise. Applicants must have extensive documentation showing sustained national or international acclaim and recognition in their fields of expertise.
Applicants must either show that they have obtained a major internationally recognized award (such as the Nobel Prize) or that they fulfill three out of the following ten regulatory criteria:
- Evidence of receipt of lesser recognized national or international prizes or awards in the field of expertise;
- Evidence of membership in professional associations which have exclusive membership selection criteria based on outstanding accomplishments;
- Published material about the applicant’s work in the field of expertise;
- Proof that the applicant has “judged” the work of others in his or her professional field;
- Evidence of innovative and significant contributions to the field;
- Evidence that the applicant has authored scholarly articles and these articles were published in major professional or trade publications;
- Evidence that applicant’s work has been displayed in reputable artistic exhibitions;
- Leading or critical role in reputable organizations;
- Evidence that the alien has commanded a higher salary than his peers; or
- Commercial success in the arts production.
A specific job offer is not needed, so long as the applicant plans to continue work in the field of demonstrated extraordinary ability. Such applicants can file their own Immigrant Petitions for Alien Worker, Form I-140, with the USCIS.
2. Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. Applicants in this category must be coming to the U.S. or seeking to remain here to pursue tenure, tenure track teaching, or a comparable research position at a university or similar institution of higher education. A job offer and I-140 petition must be provided by the educational institution.
3. Multinational managers or executives who 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 applicant’s employment outside of the U.S. must have been in a managerial or executive capacity, and the applicant must be coming to work in a managerial or executive capacity. A job offer and I-140 must be provided by the U.S. business.
Employment Second Preference (EB-2): Professionals Holding Advanced Degrees and Persons of Exceptional Ability
A Second Preference applicant must generally have a labor certification approved by the Department of Labor, as well as a job offer from a prospective employer who has filed Form I-140 on the applicant’s behalf. (Only if an applicant can demonstrate that an exemption is in the national interest can this requirement be waived).
There are two subgroups within this category:
1. Professionals holding an advanced degree (A Master’s or doctoral degree) or a baccalaureate degree and at least five years progressive experience in the profession.
2. Persons with exceptional ability in the sciences, arts, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Employment Third Preference (EB3): Skilled Workers, Professionals, and “ Other Workers”
A Third Preference or an “other worker” applicant must have an approved Immigrant Petition for Alien Worker, Form I-140, filed by the prospective employer. All such workers generally require labor certification approved by the Department of Labor. Furthermore, there is usually a substantial backlog in processing these cases, particularly those for “other workers.”
“Skilled workers” are those whose jobs require a minimum of 2 years training or work experience. “Professionals” are members of the professions whose jobs require at least a baccalaureate degree from a U.S. university or college or its foreign equivalent degree. “Other workers” are applicants capable of filling positions that require less than two years of training or experience. The work must not be temporary or seasonal for either EB3 or “other” workers.
Employment Fourth Preference (EB4): Certain Special Immigrants (G-4 visa holders)
There are special provisions for a variety of highly specific categories that fall under EB4. The most common is for long-term employees with “G-4” visas retiring from international organizations such as the World Bank, IMF, or UN, or spouses or children of such individuals. We regularly handle cases in this category, which rarely has a backlog. Religious workers may also qualify for special immigrant visas under this category. For a complete list of all “special immigrant” visas, click here.
Employment Fifth Preference (E5): Immigrant Investors
To qualify as an Immigrant Investor, a foreign citizen must invest between U.S. $500,000 and $1,000,000, depending on the unemployment rate in the geographical area, in a commercial enterprise in the United States. The investor must demonstrate that the investment creates or retains at least 10 full-time jobs for legal U.S. workers, not including the investor or the investor’s family. This may be done either through an individual investment or as part of a group investment in a regional center. This category generally has no backlog.
Our firm assists individuals and companies or organizations in evaluating what immigration options may be available, based upon the needs of the business, the skills and training of the prospective employee, and the overall job market. It is extremely important to thoroughly and carefully document the qualifications, past accomplishments, and future duties of the prospective employee, make sure any advertisement complies with all requirements for labor certification, and document the existence and activities of the business or institution. It is crucial to comply with all applicable requirements from the Departments of Labor, Homeland Security, and/or State, depending upon the specifics of the case. We carefully analyze each client’s situation, and review legal authorities to be able to provide knowledgeable guidance about the chances of success at each stage. If a desired path does not appear feasible, we can advise about alternatives. Once a business and/or individual has decided to pursue a particular category of visa, we thoroughly educate ourselves on the relevant specialty so as to build a compelling case. For special immigrants (EB4), we explain in detail and document the requirements of the petition and adjustment of status process. Due to our office’s location near the World Bank, we have helped hundreds of individuals obtain special immigrant visas as former G-4 visa holders. We have also been successful in obtaining approvals in the highly desirable EB1 category, which avoids the labor certification process. We look forward to discussing your options with you.
The content of this website is meant only to acquaint you with general information about immigration. This information is not legal advice and is not a substitute for having a consultation with an attorney. If you have additional questions or would like to schedule a consultation, please contact us.