EMPLOYMENT BASED IMMIGRANT VISA PETITIONS

First, Second and Third Preference Categories

The Immigration Act of 1990 dramatically restructured the employment-based ("EB") immigrant visa categories. There are currently three common preference categories for employment based immigration: First Preference, priority workers (EB-1); Second Preference, workers with advanced degrees and those of exceptional ability (EB-2); and Third Preference, professionals, skilled workers, and other workers (EB-3). Although there are other preference categories, this article will provide an overview only of the first three preference categories.

In obtaining employment based immigrant visa classification, the first step is to request and receive an approved immigrant petition qualifying the alien in one of the aforementioned referenced categories. Once the petition approval is obtained from the Immigration Service there are two methods of filing for permanent resident status, known as Consular Processing or Adjustment of Status.

The first preference category, EB-1: Priority Workers, is composed of 3 sub-categories: (1) aliens with extraordinary ability; (2) outstanding professors and researchers; and (3) certain multinational executives and managers. An employer able to demonstrate that an employee qualifies in an EB-1 capacity significantly reduces the processing time in obtaining permanent resident status for an employee.

Aliens of extraordinary ability are defined by statute as those who can document that they have recognized extraordinary ability in the sciences, arts, education, business or athletics as demonstrated by sustained national or international acclaim. The major benefit in placing a worker in this category is that no job offer or labor certification is required. The process is thereby expedited to 2 months. Generally, this status is reserved for those individuals at the very top of their field of endeavor. 8 CFR§204.5(h)(2).

In order to qualify as an outstanding researcher, the alien must (1) be internationally recognized as outstanding in a specific academic area; (2) have a minimum of three years of experience teaching or researching in that area; and (3) be entering the U.S. in a tenure or tenure track teaching or comparable research position with a private employer having at least three full-time researchers and documented accomplishments in the field. An employer must be willing to offer the alien worker a permanent position of employment. Specific standards are set forth to determine that an alien has been recognized as internationally outstanding. 8 CFR§204.5(i).

A multinational manager or executive is eligible for EB-1 status if he or she has been employed outside the U.S. in a managerial or executive capacity for at least one of the three years preceding the filing of the petition. 8 CFR§204.5(j). The past employment must have been with a branch, parent, affiliate, or subsidiary of the proposed employer. The proposed employment must be in a similar executive or a managerial capacity.

The second preference category, EB-2: Aliens who are Members of the Professions requires labor certifications except in cases of "national interest" or in Schedule A, Group II pre-certification.8 CFR§204.5(h)(2).

EB-2 workers have two classifications: (1) aliens who are members of the professions holding advanced degrees and (2) aliens of exceptional ability in the sciences, arts or business who will substantially benefit the national economy, cultural, or educational interests.

A profession is defined as a position requiring at least a baccalaureate or its equivalent. An advanced degree is defined as any degree beyond the baccalaureate or a combination of baccalaureate and experience.

EB-2 workers of exceptional ability must demonstrate that they have expertise significantly above the ordinary. The standard of exceptional ability is generally not as strict as extraordinary ability.

The third preference category, EB-3: skilled, professional and other workers requires individual labor certification. EB-3 workers have three classifications: defined in the Immigration Regulations 8 CFR§204.5(l), (1) skilled workers with at least two years experience; (2) professionals with a baccalaureate degree required for the job position; and (3) other workers with less than two years experience required for the position. Skilled workers are defined as those workers in positions which require a minimum of two years of training or experience. Post secondary education counts as training. Professionals must possess a baccalaureate degree or foreign equivalent (equivalency based on professional years of experience is not permitted), and the petitioner must demonstrate that such a degree is the normal requirement for entry into the profession. Other workers are those individuals in positions which require less than two years of training or experience.