An Overview of Employment-Based Immigration

October 2, 2014 2:16 pm
by David Jakeman

This post will summarize employment-based immigration and future posts will discuss each sub-category (preference) in greater detail. Before any immigrant or employer initiates this process, it is recommended that he or she first consult with an immigration lawyer.

There are approximately 140,000 immigrant visas available each year for individuals looking to obtain a green card based off employment. The employment-based immigration system is subdivided into five categories or preferences. Each preference contains specific eligibility criteria. Also, some categories require approval of a labor certification from the United States Department of Labor (DOL). Consistent with section 212(a)(5) of the Immigration and Nationality Act (INA), labor certification certifies to immigration authorities that:

“(I) there are not sufficient workers who are able, willing, qualified . . . and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.”

Additionally, some employment preferences require the immigrant applicant to already have a job offer from a United States employer, who will also be considered the immigrant’s sponsor.

The following is a summary of the five employment-based preferences (see INA § 203(b)):

1) First Employment-Based Preference (EB-1): Reserved for “priority workers” including aliens with extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; certain multilevel executives and managers. No labor certification is required.

2) EB-2: Reserved for “members of the professions holding advanced degrees or aliens of extraordinary ability” in the arts, sciences, and business. A labor certification is required unless the applicant can obtain a national interest waiver (NIV). An NIV allows the applicant to forego the labor certification requirement because “an alien’s services in the sciences, arts, professions, or business [which are to] be sought by an employer in the United States” is in the national interest, as deemed by immigration authorities.

3) EB-3: Reserved for “skilled workers, professionals, and other workers.” Each of these three classifications carries a specialized legal meaning which will be further discussed in a later blog post. Labor certification is required.

4) EB-4: Reserved for “certain special immigrants,” including certain religious workers, employees of U.S. Foreign Service posts, retired employees of international organizations, alien minors who are wards of courts in the United States, and other classes of aliens. Labor certification is not required.

5) EB-5: Reserved for “employment creation.” These are business investors who invest a minimum of a million dollars, usually, in a new commercial enterprise that employs at least 10 domestic United States workers. No labor certification is required for obvious reasons.

Those immigrating under to the United States under one of these categories will also be able to bring their spouses and children.