Permanent Migration to the United States
Based on Employment
An immigrant visa or permanent residence status is granted to individuals who are entering the United States on a permanent basis or for an indefinite period of time. This status does not confer citizenship on the recipient. The permanent resident is required to maintain his or her primary or principal residence inside the United States. Many non-immigrant visa holders adjust their status to permanent residence.
The employment-based immigration categories are as follows:
First Preference (EB1 priority workers – “Extraordinary Ability “ – Self-petitioners)
Second Preference (EB2 workers with advanced degree or exceptional ability)
Third Preference (EB3 professionals, skilled workers and other workers).
Fourth Preference (EB4 certain special immigrants)
Fifth Preference (EB5 Immigrant Investor - This classification is treated by the law as an employment-based classification because it relates to employment creation by a foreign investor
There are various ways for individuals to immigrate to the United States through employment-based immigration. One of the most common ways is through the labor certification process, in which the company/sponsor must show the Beneficiary is either one of the best in the field or that there are no U.S. workers available to fill the position.
Exemptions to individual labor certification exist for first preference persons of extraordinary ability (EB1) and fifth preference employment investor immigrants (EB5). Moreover, there might be an exemption for national interest waiver applicants (EB2) and certain qualified shortage positions listed on Schedule A including nurses and physical therapists.
Labor Certifications can be done for skilled and unskilled workers as long as the beneficiary does not displace a US worker. PERM regulations will be implemented March 28, 2005, which allows petitioners to file on-line.
The first employment based preference category of immigrant visas is extraordinary ability workers also known as "priority workers."
The category is divided into three major groups:
1) Persons of Extraordinary Ability in the Sciences, Education and Business;
o Must have “a level of expertise indicating that the person is one of the small percentage of people who have arisen to the very top of the field of endeavor.”
o Can self-petition
2) Professors and Researches
o To be considered in this group a person must be internationally recognized as outstanding in a specific academic field, have at least three years of experience teaching or researching in the field, and either
- The offer of a tenured or tenure track teaching position or the offer a comparable research position or
- The offer of a research position having no fixed term and in which the employee will ordinarily have an expectation of permanent employment or
- The offer of a comparable research position with a private employer if the employer has at least three full time researchers and documented accomplishments in the research field
Job offer is a requirement
3) International Managers and Executives
o To be included in the group, the foreign national must have at least one year in the preceding three employed by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer, and he or she must be coming to work in the United States in a managerial or executive capacity.
A U.S. employer may file a petition for a foreign national when the job requires an advanced degree and the foreign national possesses such a degree
To show eligibility as a worker of exceptional ability in the sciences, arts or business, the individual must have a degree of expertise significantly above the ordinary. This is established by satisfying at least three of the following six criteria:
An official academic record showing a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the field of learning;
At least ten years of full time experience in the occupation documented by letters from current or past employers;
A license to practice the profession or certification for particular profession or occupation;
Evidence that the foreign national has commanded a salary or other remuneration for services that demonstrate exceptional ability;
Membership in professional associations; (there is no requirement that the professional associations require outstanding achievement for admission);
Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.
National Interest Waiver
Those who seek to be classified advanced degree professionals and workers of exceptional ability may seek an exemption from the requirement of a job offer (and the labor certification process) by proving that their admission is in the national interest. The “national interest” test requires a showing of the following:
Improving the economy;
Improving wages and working conditions of United States workers;
Improving education and training programs for United States children and under qualified workers;
Improving health care;
Providing more affordable housing for young and/or older, poorer U.S. citizens;
Improving the U.S. environment and making more productive use of U.S. resources; or
A request from an interested United States governmental agency.
This list is not exhaustive. The national interest waiver has applied to a variety of fields and positions.