Main Categories Of Immigrant Employment Based Positions
Our Michigan immigration attorneys can assist you in obtaining an immigrant visa based on an employment based petition. The various options available are described below:
I. First Employment Based Preference for Priority Workers
A. Priority Workers: Outstanding Professors and Researchers
In 1990, a category for outstanding professors and researchers was added to the Immigration and Nationality Act. Aliens who meet these criteria are allowed, under certain circumstances, to immigrate to the United States without the need for a labor certification. A professor or researcher must have some international recognition as outstanding in a specific academic area and should also have three years of experience in teaching or research in that academic area. The petition, which is filed by the proposed employer, must show that the alien seeks to enter the United States for a tenure position (or at least tenure-track position) either within a University or comparable institution of higher education, or to conduct research in a private entity with at least 3 full time employees in research activities.
A main advantage to this category (and to all categories for priority workers) is the speedy conclusion and determination, as the application does not need approval from the Department of Labor.
The success of these petitions is dependent on the amount of documentation provided. The more documentation, the higher the probability of success. Petitions normally should include any awards received by the alien, proof of memberships in professional organizations, copies of published material, any evidence of the alien's scholarly or original work, and any activity bearing on the qualifications of the alien. Further, expert testimony in the form of affidavits is often very helpful.
B. Priority Workers: Extraordinary Ability Aliens
This is one of the most difficult criteria to satisfy in the immigration arena. The immigration law allows persons with extraordinary ability in the sciences, arts, education, business, or athletics to obtain permanent resident status without labor certification and also without the need for a job offer. All that is required is that the alien proves him or herself to be one of extraordinary ability who will continue to work in the United States in his or her field of endeavor.
The threshold for "extraordinary ability" surpasses any other standard set by the Immigration and Nationality Act. For example, United States Citizenship and Immigration Service (USCIS) rules provide the Nobel Prize as an example of the qualifying evidence. Absent that kind of an achievement, the regulations provide several types of evidence and require the applicant to satisfy at least three types of said evidence. These include scholarly publications, published material, international recognition, membership in esteemed organizations, participation in high-level specialized panels in the field, authority to judge the work of others, occupying a leading role in major endeavors or projects, commercial success, the obtaining of a high salary, etc. The USCIS reserves the right to request even more evidence than the above but also allows the submission of comparable evidence.
C. Priority Workers: Managerial or Executive Transferees
This category covers managers and executives of international companies. The intent of the law is to benefit multi-national corporations which presumably are involved in international trade. To qualify under this category, the alien must have been working in the foreign entity for at least one year within the preceding three years and must be coming to the United States to continue to work with an affiliate entity in a managerial or executive capacity. This category is extremely useful because labor certification is waived and usually there is no backlog except for the processing time needed by the USCIS to process the application. The definition of what constitutes a manager or executive and the general requirements for this visa parallel to a large extent the non-immigrant visa known as L-1A, except that where the foreign entity has not yet established a presence in the United States, the alien may have to wait one year while his employer is conducting U.S. business, prior to the application.
II. Professionals With Advanced Degrees and Aliens With Exceptional Ability (Second Employment-Based Preference)
This is what is called a second employment based preference. The Immigration Act allows 40,000 annual visas for this category plus any visas unused in the first employment based preference. This category covers two types of workers: Aliens with exceptional ability in the sciences, arts, or business as well as advanced degree professionals.
This category is subject to labor certification, i.e., the approval of the Department of Labor, unless the applicant proves that a waiver of the labor certification is in the national interest. The first subcategory of aliens covered are aliens of exceptional ability. Inclusion requires that the alien has a degree of expertise above that ordinarily encountered in the field. Thus, a degree or a license may not be enough. The USCIS lists of several types of evidence and requires at least three of those to be satisfied. These include academic achievements, a minimum of ten years of experience, a license or certification in the field, commencement of a salary reflecting exceptional ability, membership in a professional organization, and evidence of professional recognition as well as other comparable evidence.
The second subcategory within this group includes advanced degree professionals. A profession is generally regarded by the USCIS as a field in which the attainment of a Bachelors degree is the minimum requirement for entry in the field. An advanced degree, on the other hand, is defined as any degree beyond a Bachelors degree. The USCIS allows a Bachelors degree plus five years of progressive experience to be equated to a post-graduate degree.
Whether the requirement for labor certification can be waived on the basis of a national interest waiver has been the subject of substantial recent debate. Initially, there were no strict guidelines and the USCIS examiners had some liberty in adjudicating whether the employment of the alien would merit a national interest waiver of the labor certification. However, under a 1998 decision by the USCIS administrative appeals unit, the guidelines have been made much more strict and more heightened factors have been established that have to be met for the application to merit a national interest waiver. Those include proof that the alien's employment is an area of substantial intrinsic merit, that the proposed benefit of hiring the alien will be national in scope, that the national interest would be adversely affected if labor certification were required. Many writers have suggested that the decision has basically closed the door to obtaining a national interest waiver for numerous applicants whose employment in the U.S. is critically needed.
III. Third Employment Based Preference for Professionals, Skilled Workers, and Other Workers
This category covers professionals, which includes most people with Bachelors degrees, as well as skilled workers which are defined as persons with occupations that normally require a minimum of two years of training or experience. The category also covers unskilled labor, which covers occupations which require training or experience less than two years. However, practically speaking, the waiting list for the unskilled worker is so long that the inclusion of unskilled workers is of little practical benefit in most cases. Nonetheless, for professionals and skilled workers, this category offers substantial benefit. To start with, professionals with Bachelors degrees do not need any experience to be covered in this category. Also, most of the occupations of the skilled labor technically needed by U.S. employers are usually covered, since most normally require training or experience of at least two years. A drawback of this category had been that a labor certification is always needed. That is, the Department of Labor (DOL) has to certify that there are no U.S. workers willing, able and ready to occupy the position offered to the alien. The labor certification process, in many regions of the country, typically takes a few years. However, the Department of Labor has established alternatives to the traditional labor certification process. In recent years, this process was known as the reduction in recruitment method (RIR) and was the expedited alternative. In many regions of the country, the reduction in recruitment method resulted in labor certifications being granted within less than a year. However, on March 28, 2005, the procedures for employers to sponsor foreign nationals for employment-based immigration changed as the U.S. Department of Labor (DOL) implemented the Program Electronic Review Management (PERM) system to further streamline the labor certification application. Use of this category and the Labor Certification process is by far the most common method for U.S. employers and to petition for a potential immigrant.
