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Employment Based

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Immigration Workers are important to the U.S. economy. The Immigration and Nationality Act (INA) regulates foreign professionals and skilled workers applying for temporary visa and permanent residence in the United States. INA created five employment based preferences and divided them into following sub-groups:

(1)   The employment-based first preference (EB-1): This preference is available to the following individuals:

(a)    Persons with Extraordinary ability:

The individuals with “extraordinary ability" in science, arts, education, business or athletics are eligible for this classification. "Extraordinary ability" is defined as a level of expertise showing that the individual is one of that small percentage who has risen to the very top of the field. Besides meeting statutory requirement, it should also be demonstrated that the applicant will continue to work in the field of his or her expertise, and that his/her entry will substantially benefit the United States prospectively, if the petition is approved. No offer of employment is required.

(b)   Outstanding Professors and Researchers:

This EB-1 category is limited to outstanding researchers and professors in academic fields. The applicants in this category are exempt from obtaining a labor certification. The offer of employment is however required and it should be from a University or Academic Institution. The offered employment should be permanent, tenured or tenure track research position. Private and non-academic institutions may also qualify subject to certain requirement and the same should be properly documented.

(c)    Multinational Manager:

Certain executives and managers of multinational organizations are eligible to apply for permanent resident status under EB-1 Category. The eligibility of the applicant is based on his or her continuing employment with a company or organization, which is registered and has operations in more than one country including United States. No labor certification is required but the offer of employment from multinational company is required. In order to qualify as a multinational organization, the petitioning company or organization must have offices and have been engaged in business for one year prior to filing the petition in the United States and at least one other country. It includes offices of the same company, parent, subsidiary or affiliate. But entities are subject to certain qualifications and their qualifying relationship must be properly documented. The beneficiary`s employment is also subject to certain qualification and it must be properly documented to demonstrate that the beneficiary was working in managerial or executive capacity

(2)   Employment-Based Second Preference:

Individuals with advanced degrees and individuals of exceptional ability qualify under this category. If it could be demonstrated that their work will serve national interest of the United States, the applicants with advanced degree or those with exceptional ability  could be exempt from the labor certification requirement.

Except for the nationals of India and China, this category has not been backlogged recently. Thus, for those who qualify under this category, it may be a faster way to immigrate as EB-3 category has much longer wait. USCIS is aware that applicant`s apply under this category in order to overcome backlogs, the immigrant petition under this category may be subjected to more rigorous and stringent review. The petition under this category therefore calls for a very cautious approach and a thorough preparation to ensure favorable outcome.

EB-2 category is available to those with advanced degrees, who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the economy, cultural or educational interest, or welfare of United States, and whose services are sought by an employer in the United States.

Unlike, the advance degree professionals, exceptional-ability applicants must file for labor certification and therefore should have a job offer. Otherwise, request a waiver of labor certification by showing that the applicants work will serve the national interest. This category is limited for individuals working in the field of sciences, arts, or business. Certain applicants may use schedule A precertification enabling them to skip time consuming process of labor certification, subject to meeting several specific requirement.

Both, advanced degree and exceptional ability professionals may seek waivers of the job offer and labor certification requirement.

(3)   Employment-Based third Preference:

Employment-based third preference includes professionals, skilled workers and other workers. This category is backlogged and involves long waits. In most of the cases, the first step in the process of permanent residence starts with labor certification. The labor certification process ensures that the domestic labor market has been tested and that there are no U.S. worker-applicant who are willing, able and qualified for the position. This process calls for compliance with mandatory recruitment requirements and considers U.S. applicants and files the application with the Department of labor.

After obtaining labor certification, immigration petition could be then filed with the USCIS subject to Visa availability and wait required by the backlog in this category. Finally, the beneficiary recieves green card when the immigrant visa becomes available. This process wraps-up either upon conclusion of adjustmanent of status or through consular processing. 

(4)   Fourth employment-based preference: (Religious workers) 

Certain number of religious workers could immigrate under this category. Even though the religious workers are placed under this category, they are treated as different specialty and the process is subject to stringent requirement.

Religious workers include ministers and those who work in a religious vocation, and must have been a member of the denomination and working as a qualifying religious worker for two years. The religious worker should be coming to work for a bona fide non-profit religious organization of the same denomination.

(5)   Fifth Employment-based Preference:

This is related to the Investment option, please click here for  more information.