Employment Based Immigration
Labor Certification and Filing a Petition
To begin the employment-based immigrant visa process, the applicant's prospective employer must first obtain a labor certification approval from the Department of Labor (note: some preference categories do not require a labor certification). In cases requiring a labor certification, once approved, the employer then files an Immigrant Petition for Alien Worker, Form I-140, with the U.S. Citizenship and Immigration Services.
Employment First Preference (EB-1): Priority Workers
- 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. No specific job offer or labor certification is required. (Applicants can self-petition without a job offer or petitioning employer). INA § 203(b)(1)(A).
- 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 research position at a university or other institution of higher education, or in a comparable research position with a private employer under certain circumstances. (A prospective employer must provide a job offer and file a Form I-140 with USCIS). INA § 203(b)(1)(B).
- Multinational managers or executives who have been employed for at least one of the three preceding years by the overseas 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. (A prospective employer must provide a job offer and file a Form I-140 with the USCIS). INA § 203(b)(1)(C).
Employment Second Preference (EB-2): Professionals Holding Advanced Degrees and Persons of Exceptional Ability
Under this preference category, a labor certification approval is generally required. Additionally, a job offer is required and the prospective employer must file a Form I-140.
National Interest Waiver. Applicants may apply for a national interest waiver exemption from the job offer and labor certification if the exemption would be in the national interest.
- Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession. 8 CFR § 204.5(k).
- Persons with exceptional ability in the sciences, arts, or business, that will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States. (Exceptional ability means having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business). 8 CFR § 204.5(k).
- National Interest Waiver. National interest waivers are usually granted to those who have exceptional ability and whose employment in the U.S. would greatly benefit the nation.
Employment Third Preference (EB-3): Skilled Workers, Professionals, and Other Workers
Under this preference category, labor certification approval is generally required. Additionally, the prospective employer must file a Form I-140.
- Skilled workers are persons whose jobs require a minimum of 2 years training or work experience that are not temporary or seasonal.
- 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.
- Other workers are persons capable of filling positions that require less than two years of higher education, training, or experience. 8 CFR § 204.5(l)
Employment Fourth Preference (EB-4): Certain Special Immigrants
Under this preference category, an applicant must be the beneficiary of an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. (A labor certification is not required).
- Ministers of Religion
- Certain Employees or Former Employees of the U.S. Government Abroad
- Certain Former Employees of the Panama Canal Company or Canal Zone Government
- Certain Former Employees of the U.S. Government in the Panama Canal Zone
- Certain Former Employees of the Panama Canal Company or Canal Zone Government on April 1st, 1979
- Iraqi and Afghan interpreters/translators
- Iraqi and Afghan nationals who have provided faithful and valuable service while employed by or on behalf of the U.S. government
- International Organization Employees
- Persons Recruited Outside of the United States Who Have Served or are Enlisted to Serve in the U.S. Armed Forces
- Certain retired NATO-6 civilians
Employment Fifth Preference (EB-5): Immigrant Investors
Immigrant Investor visa categories are for capital investment by foreign investors in new commercial enterprises in the U.S. which provide job creation.
EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise: (1) Established after Nov. 29, 1990, or (2) Established on or before Nov. 29, 1990, that is: (a) Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or (b) Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs.
A qualifying investment must, within two years, create full-time jobs for at least 10 U.S. citizens, lawful permanent residents, or other immigrants authorized to work in the U.S.
Required minimum investments are:
- $1,000,000 (U.S.); or
- $500,000 (U.S.) in a high-unemployment or rural area, considered a targeted employment area.