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Employment Based Petitions

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Besides immigrating to the United States through family petitions, an alien may also be sponsored through an employer to change his/her status from a non-immigrant to that of an immigrant; or, if the alien is outside the U.S., to immigrate to the U.S. The word immigrate signifies the person's desire to permanently stay in the U.S., and are not here merely to work. Thus, not to be confused with "nonimmigrant Visas," which would allow the alien to come to the U.S. to work under a specific program and/or for a certain amount of time. A person that is sponsored by an employer to come to the U.S. under employment based petition (form I-140) will remain in the U.S indefinitely as a permanent resident.

There are 5 different types of employment-based petitions. Some categories required the applicant to apply and receive a labor certification through the PERM process (a document provided by the Department of Labor) to certify that the person possess skills lacking in the U.S; the job also requires the applicant to remain in the U.S. on a permanent basis) prior to filing for the immigrant petitions. Other categories which exempt the applicant from obtaining a labor certification are if the person is a multi-national executive transferee, those who have exceptional skills and qualifications or invest a large amount of money in the United States (see below).

What are the various categories of Employment Based Petitions and its requirements?

Employment-Based First Preference (EB-1) – Under the first preference, there are three subcategories in which an alien may be qualified. The subcategories share, without allocation among them, 40,000 visa numbers per year. These individuals are exempt from obtaining labor certification - PERM, prior to filing for their immigrant petition out of the interest of the United States. They are:

  • EB-1 Subcategory (a): Workers of Extraordinary Ability in the Sciences, Arts, Education, Business, or Athletics – These are individuals with "extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. Essentially, the individual must have had international recognition, such as a Nobel Price to be considered under this category. However, certain recognized businessmen (businesswomen), who have had international recognitions, may also be qualified. An experienced attorney, who is also creative, may be able to assist you in obtaining an immigrant visa under this category where others may failed to recognize.
  • EB-1 Subcategory (b): Outstanding Professors and researchers – The applicants must have gained international fame for their research and/or academic achievements. In addition, the person must have had at least 3 years experience, and enter the U.S. working for a research center or university in the same field of study.
  • EB-1 Subcategory (c): Certain Transferring Multinational Executives and Managers – Some executives and managers of foreign companies who are transferred to the U.S. may qualify. A multinational manager or executive is eligible for priority worker status if he or she has been employed outside the U.S. in the three years preceding the petition for at least one year by a firm or corporation and seeks to enter the U.S to continue service to that firm or organization. The employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, a subsidiary of the employer, or through common ownership. Often times, the USCIS will reject the application based on the applicant's inability to show "executive capacity." The attorney need to be creative and show that Applicants have various layers of management, and in some cases, may be show that "contractors" are employees under this requirement.

Employment-Based Second Preference (EB-2) – The "EB-2" (or "second") preference category is for immigrants in the following three categories. They share, without allocation between them, about 40,000 visa numbers per year, plus the spill-down of any unused numbers from the EB first preference. Although EB-2 approved applicants may adjust their status to obtain legal permanent resident, they must go through the labor certification process, which is now done electronically through PERM.

  • Foreign nationals of exceptional ability in the sciences, arts or business – "Exceptional ability" is defined in the Department of Homeland Security regulations as ''a degree of expertise significantly above that ordinarily encountered in the sciences, art, or business."
  • Foreign nationals with advanced degrees – The professional must have an "advanced degree," i.e., a master's or doctorate. "Profession" means one of the common professions listed in the statute, plus any other occupation for which a bachelor's degree or foreign equivalent is the minimum entry requirement.
  • Qualified alien physicians who will practice medicine in an area of the U.S. which is underserved – A "physician" is defined as a doctor of medicine or a doctor of osteopathic medicine. The petitioner (employer) must apply for a "national interest waiver," from the Department of Labor for the person to work in an underserved area.

Employment Based: Third (3rd) Preference – Each year, there are 40,000 visa numbers allocated annually to the third EB preference, which consists of three sub-categories, discussed below. The applicant must have a job offer and labor certification, PERM, approved prior to applying. Prior to November of 2006, certain jobs that lack qualified personnel in the U.S., such as Nurses and Physical Therapists, are qualified under the "blanket certification" (also called "Schedule A") by the Department of Labor and do not need a labor certification. Since USCIS's announcement in November of 2006 that visas are ran out for Schedule "A," all nurses and PT's must apply through H-1B an/or through EB-3 category and wait for a visa to be available to be admitted into the U.S. There is no allocation of numbers between professionals and skilled workers, and there usually were no backlogs for these combined subcategories. However, no more than 10,000 numbers of the total annual allocation for this category may be used for ''other workers," whose subcategory is therefore usually backlogged for many years.

  • Professionals (for positions requiring at least a baccalaureate). This is the category in which many H-1B professionals apply when their employers submit their I-140 for immigrant petition and I-485 application for adjustment of status;
  • Skilled workers (for positions requiring at least two years of experience); and
  • Other workers (for jobs requiring less than two years of experience). As of the latest Visa Bulletin, no visa is available for this category until fiscal year 2008, starting October 1, 2007.

Employment Based Fourth (4th) Preference: Religious Worker and Other Special Immigrants – Each year, there are 10,000 visa numbers allocated annually to certain categories that are called "special immigrants." Most of these qualifications are obscured and take up very few visas. The majority of these visas are used by religious workers, which consists of three main sub-categories:

  • Ministers of Religion, including priests and monks (a lay preacher does not qualify);
  • Professionals employed in a religious vocation or occupation; and
  • Others working in a religious vocation or occupation.

Employment Based Fifth (5th) Preference: Under this visa, an alien may come and invest in the United States. If approved, the person does not need a labor certification and usually a visa is immediately available. The person must invest at least $1 Million in a populated area or $500,000 in a less populated (rural) area. The person must control and manage his company. The company must employ at least 10 additional persons. The applicant can purchase an existing business or to start a new business. The advantage to this visa is that the investor and his family (wife and unmarried children under 21) can come to the U.S. and a green card is available immediately when they come to the U.S.

I-140 Petitions for Alien Employees and Adjustment of Status through employment based petitions requires detailed documentations to meet various requirements under immigration law. You should seek professional help in filing your application to minimize the risk of a potential denial. Please contact one of our Houston immigration attorneys for more information and assistance in filing your applications.

If you or someone you know is need of family law services, please do not hesitate to call Garg & Associates at 281-362-2865 for a consultation today or use our Contact Form.

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