EMPLOYMENT BASED GREEN CARDS

The employment-based immigration categories are referred to as such because they are based on a foreign worker's particular occupation and skills. The employment-based categories consists of five preference categories, each of which are subject to visa waiting lists similar to those discussed in the context of family immigration.

The first preference consists of priority workers, the second preference consists of professionals holding advanced degrees and persons with exceptional ability and the third preference consists of professionals, skilled workers and other workers. The fourth preference consists of special immigrants not discussed here and the fifth preference consists of the immigrant investor category which is discussed in a separate article. Employment-based categories are subject to annual visa limits. This means that there are waiting lists in many of the categories. Available visas are issued to beneficiaries in order of their priority date (the date of filing of the labor certification, if one is necessary, or the date of filing the I-140 petition).

The First Preference (EB-1)
The first preference category requires no labor certification as a condition of visa issuance. In other words, persons falling under the first preference category are not required to establish that there are no qualified U.S. workers available for the proposed position.

The first preference consists of three subgroups, each with different requirements for eligibility:

(a) persons of extraordinary ability;
(b) outstanding professors and researchers; and,
(c) multi-national executives and managers.

The basic requirements of each are as follows:
Persons applying under the first subgroup are not required to have a job offer but must possess 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.

Persons applying under the second subgroup must be internationally recognized as outstanding in their specific academic area, have a minimum of three years of experience in teaching or research in the area and be entering the U.S. in a tenure or tenure track teaching or comparable research position at an institution of higher education.

Persons falling under the final subgroup must have been employed as a manager or executive outside the United States for the same U.S. employer, subsidiary or affiliate of the U.S. employer for at least one year within the last three. They must also be entering the United States to work as a manager or executive of the U.S. employer.

The Second Preference (EB-2)
The second preference category includes:

(a) members of the professions holding advanced degrees; and
(b) aliens who, because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.

To qualify as a member of the professions the alien must have an advanced degree, which the USCIS takes to mean "any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate.'' This essentially means a United States masters degree or above. The USCIS has indicated that a U.S. or equivalent foreign baccalaureate followed by at least five years of progressive experience in the specialty will be the equivalent to a masters degree. If the profession requires a degree higher than a masters, the alien must have that degree.

The word "exceptional" in the context of this category means that the individual must have a degree expertise significantly above that ordinarily encountered. To qualify as an alien of exceptional ability for the purpose of second preference classification, the individual must have a degree of expertise significantly above the ordinary as shown by evidence satisfying at least three of the following criteria which appear at 8 CFR § 204.5(k)(3)(ii):

• An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
• Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
• A license to practice the profession or certification for a particular profession or occupation;
• Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
• Evidence of membership in professional associations; or,
• Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

Under 8 CFR § 204.5(k)(3)(iii), if the above standards do not readily apply to the beneficiary's occupation, comparable evidence may be submitted to establish eligibility.

Under this category, the foreign worker must have a job offer and obtain a labor certification for the proposed position. However, it is possible to avoid the requirement of a labor certification or job offer in certain cases. The alien may seek an exemption in two ways. The first exemption from the labor certification requirement (but not the job offer requirement) is sought under the Schedule A, Group II of the Department of Labor regulations (called Schedule A Precertification).

Alternatively, if it can be shown that the alien's admission would be in the national interest, it is possible to obtain a national interest waiver of both the job offer requirement and the labor certification requirement.

The Third Preference (EB-3)
The third preference consists of skilled workers, professionals and "other workers." Skilled workers are those whose positions require a minimum of two years of training or experience. Professionals must possess a bachelor degree in the field and must establish that a bachelor degree is the normal requirement for entry into the profession. The final category of "other workers" means essentially unskilled workers.

Professionals and skilled workers are placed on the same waiting list for available visas. However, "other workers" are placed on a separate waiting list. Given the fact that backlog for "other workers" is effectively twenty years, the filing of such a petition for an unskilled worker is not recommended.

Third preference workers must have a job offer and obtain a labor certification. However, where Schedule A precertification applies, the alien will be exempt from the labor certification requirement.

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"Portability" of Labor Certifications and Immigrant Petitions
Until recently, a labor certification and employment based petition was considered specific to the petitioner. If the alien changed jobs or employers, the labor certification and petition were no longer considered valid.

AC21 now provides that an immigrant petition for an individual shall remain valid with respect to a new job if the individual changes jobs or employers. However, the alien's application for adjustment of status must have been filed and remained unadjudicated for 180 days or more. The new job must also be in the same or a similar occupational classification as the job for which the petition was initially filed. This "portability provision" does not apply to beneficiaries of EB-1 extraordinary ability petitions, most likely because Congress assumed that such petitions already are portable.