liveimmigration.com

Overview

Every fiscal year (October 1^st – September 30^th), approximately 140,000 employment-based immigrant visas are made available to qualified applicants under the provisions of U.S. immigration law. Employment based immigrant visas are divided into five preference categories. The preference categories are commonly referred to as “EB-1” for 1^st preference visa classifications, “EB-2” for a 2^nd preference visa classifications, “EB-3” for 3^rd preference classifications, “EB-4” for 4^th preference classifications, and “EB-5” for this preference classifications. The various visa classifications are described in more detail below.  “EB” stands for “employment-based.”

Spouses and children under the age of 21 are generally entitled to receive their Green Card (U.S. Permanent Resident Visa) along with the primary applicant.  The family members are not counted against the visa preference cap within each category; only the primary applicant is count for the quota limit.

Petitions

To be considered for an immigrant visa under some of the employment-based categories below, the applicant’s prospective employer or agent must first obtain a labor certification approval (“PERM” application) from the Department of Labor. Once received (if required), 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. Not all visa classifications require application for and issuance of a “PERM.” The preference categories commonly known as “EB-3” and “EB-2”Require the filing of the PERM application.  The other preference classifications do not.  If in the particular EB classification no permit is required, the 1^st step  in application for permanent residence Is filing of the form I-140.  if there is a backlog in the petitioners visa preference category, the filing of the I-140 establishes his or her “priority date.”

Preference Categories

Employment First Preference (EB-1): Priority Workers

A First Preference (EB-1) applicant must be the beneficiary of an approved Immigrant Petition for Foreign Worker, Form I-140, filed with USCIS. Labor certification is not required for any of the Priority Worker subgroups in the EB-1 category. Priority Workers receive 28.6 percent of the yearly worldwide limit of employment-based immigrant visas.

There are three sub-groups within this category:

1. Persons with extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in their fields of expertise. To be considered a person of extraordinary ability one must “be among a small percentage of persons who have reached the very top of their field.” Such applicants do not have to have specific job offers, so long as they are entering the U.S. to continue work in the fields in which they have 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. to pursue tenure, tenure track teaching, or a comparable permanent research position at a university or other institution of higher education or institution. The prospective employer must provide a job offer and file an Immigrant Petition for Alien Worker, Form I-140, with the USCIS.  That is, the Worker may not file the I-140 for himself, but must have his or her prospective employer file the I-140 petition.
3. Multinational managers or executives who have been employed for at least one of the three preceding years by the same employer overseas or by an 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. The prospective U.S. employer must provide a job offer and file an Immigrant Petition for Alien Worker, Form I-140, with the USCIS.

Employment Second Preference (EB-2): Professionals Holding Advanced Degrees and Persons of Exceptional Ability

A Second Preference (EB-2) applicant must generally have a labor certification (now called a “PERM”) approved by the Department of Labor. A job offer is required and the U.S. employer must file an Immigrant Petition for Alien Worker, Form I-140, on behalf of the applicant. Applicants may apply for an exemption, known as a National Interest Waiver, from the job offer and labor certification if the exemption would be in the U.S. national interest, in which case the applicant himself may file the Immigrant Petition for Alien Worker, Form I-140, along with evidence of the national interest. Professionals Holding Advanced Degrees and Persons of Exceptional Ability receive 28.6 percent of the yearly worldwide limit of employment-based immigrant visas, plus any unused visas from the Employment First Preference category.

There are two subgroups within this category:

1. Professionals holding an advanced degree (beyond a baccalaureate 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 (EB-3): Skilled Workers, Professionals, and Unskilled Workers (Other Workers)

A Third Preference (EB-3) applicant not qualifying for NIW must have an approved Immigrant Petition for Alien Worker, Form I-140, filed by the prospective employer. All such workers generally require labor certification (PERM) approved by the Department of Labor. Skilled Workers, Professionals, and Unskilled Workers (Other Workers) receive 28.6 percent of the yearly worldwide limit of employment-based immigrant visas, plus any unused visas from the Employment First Preference and Second Preference categories.

There are three subgroups within this category:

1. Skilled workers are persons whose jobs require a minimum of 2 years training or work experience that are not temporary or seasonal.
2. 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.
3. Unskilled workers (Other workers) are persons capable of filling positions that require less than two years training or experience that are not temporary or seasonal.

Employment Fourth Preference (EB-4): Certain Special Immigrants

A Fourth Preference (EB-4) applicant must be the beneficiary of an approved Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360, with the exception of Certain Employees or Former Employees of the U.S. Government Abroad (see number 3 below). Labor certification is not required for any of the Certain Special Immigrants subgroups. Special Immigrants receive 7.1 percent of the yearly worldwide limit of employment-based immigrant visas.

There are many subgroups within this category:

1. Broadcasters in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization
2. Ministers of Religion
3. Certain Employees or Former Employees of the U.S. Government Abroad – Must use Form DS-1884, Petition To Classify Special Immigrant Under INA 203(b)(4) As An Employee Or Former Employee of the U.S. Government Abroad
4. Certain Former Employees of the Panama Canal Company or Canal Zone Government
5. Certain Former Employees of the U.S. Government in the Panama Canal Zone
6. Certain Former Employees of the Panama Canal Company or Canal Zone Government on April 1^st, 1979
7. Iraqi and Afghan interpreters/translators who have worked directly with the United States armed forces or under Chief of Mission authority as a translator/interpreter for a period of at least 12 months and meet requirements. This classification has an annual numeric limitation of 50 visas. See Special Immigrant Visas for Iraqi and Afghan Translators/Interpreters – Frequently Asked Questions for more information.
8. Iraqi and Afghan nationals who have provided faithful and valuable service while employed by or on behalf of the U.S. government in Iraq for not less than one year after March 20^th, 2003 or in Afghanistan for not less than one year after October 7^th, 2001, and have experienced an ongoing serious threat as a consequence of that employment. The provision in U.S. law for Iraqi nationals created 5,000 special immigrant visas each fiscal year (FY) for 5 years, from FY2008 through FY2012. The provision in U.S. law for Afghan nationals created 1,500 special immigrant visas each fiscal year for 5 years from FY2009 through FY2013. See Special Immigrant Visas for Iraqis – Worked for/on behalf of the U.S. Government and Afghans – Worked for/on behalf of the U.S. Government for more information.
9. Certain Foreign Medical Graduates (Adjustments Only)
10. Certain Retired International Organization Employees
11. Certain Unmarried Sons and Daughters of International Organization Employees
12. Certain Surviving Spouses of deceased International Organization Employees
13. Juvenile Court Dependents (no family member derivatives; Adjustments Only)
14. Persons Recruited Outside of the United States Who Have Served or are Enlisted to Serve in the U.S. Armed Forces
15. Certain retired NATO-6 civilians
16. Certain Unmarried Sons and Daughters of NATO-6 civilians
17. Certain Surviving Spouses of deceased NATO-6 civilian employees
18. Persons who are beneficiaries of petitions or labor certification applications filed prior to September 11^th, 2001, if the petition or application was rendered void due to a terrorist act on September 11^th, 2001

Employment Fifth Preference (EB-5): Immigrant Investors

A Fifth Preference (EB-5) applicant must file an Immigrant Petition by Alien Entrepreneur, Form I-526, with USCIS. Labor certification is not required for Immigrant Investors. To qualify as an Immigrant Investor, a foreign citizen must invest $1,000,000, depending on the unemployment 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 residents, or other lawful immigrants, not including the investor and his or her family. In rural areas and in areas where there is high unemployment the investor might qualify for a program that requires only $500,000 investment.  Immigrant Investors receive 7.1 percent of the yearly worldwide limit of employment-based immigrant visas.

Ineligibilities for a Visa

Certain conditions and activities may make you, the applicant, ineligible for a visa. The consular officer will inform you if you are ineligible for a visa, whether there is a waiver for the ineligibility and what the waiver procedure is. See Classes of Aliens Ineligible to Receive Visas for more information.

Numerical Limitations

Immigrant visas are issued in the chronological order in which the petitions were filed until the numerical limit for the category is reached. The filing date of a petition becomes the applicant’s priority date. Immigrant visas cannot be issued until an applicant’s priority date is reached.

If the particular visa classification requires a PERM application (EB-2 and EB-3) the priority date is the date that the PERM application is filed with the Department of Labor. If no PERM application is required for the visa classification, the priority date is the date that the form I-140 is filed.

In certain heavily oversubscribed categories, there may be a waiting period of several years before a priority date is reached. The priority dates for certain countries, specifically including China and India, are farther back than other countries. Since the green card cannot be issued until the priority date for that country and that Preference (EB) classification is reached, and individual’s filing date (their priority date) must be as old as the date shown. For example, below is the visa bulletin table for the employment-based cases effective December, 2010. You will see from the table that for EB-2 classifications the chart shows “C.” that “C” stands for “current”, which means that there is no backlog for that particular classification/case. This means that as quickly as a person’s PERM application can be approved, he may file his form I-140, and under current law may file his Application for Adjustment (form I-485) at the same time. You will see, however, that for mainland China (P. R. China) and India the dates of June 8, 2006 and May 8, 2006 are shown, respectively. This means that in contrast to all other countries the visa applicant from China must have filed his PERM application on or before June 8, 2006, and the applicant from India must have filed his PERM application on or before May 8, 2006 in order to be eligible to receive the permanent residence visa.

An important point to keep in mind is that filing the PERM application does not give the person lawful status to remain in the United States.  The law requires the person to remain in lawful status at all times that he is in the United States. For example, those who qualify for an H-1B visa must continue to be employed and remained in lawful H-1B status until their priority date is reached. Once the priority date is reached, and assuming the person has remained in lawful status the entire time that he has been in the US, he may be eligible to file his I-485 (application for Adjustment of Status).  Once the adjustment of status application is properly filed the applicant is considered to be in lawful status, and is eligible to apply for work authorization (Commonly called “EAD”, which stands for employment authorization document).

Check the Visa Bulletin for the latest priority dates.

How to Apply for a Social Security Number Card

To learn about applying for a Social Security Number Card, visit the website for the Social Security Administration.