Immigration and Nationality Law

The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas which are divided into five preference categories.

Categories

Employment First Preference (EB-1)

Priority Workers receive 28.6 percent of the yearly worldwide limit. All Priority Workers must be the beneficiaries of an approved Form I-140, Immigrant Petition, filed with USCIS. Within this preference there are three sub-groups:

1. Persons of 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 the field of expertise. Such applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. Such applicants can file their own petition with the USCIS, rather than through an employer;
2. Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS; and
3. Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS.

Employment Second Preference (EB-2)

Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Sciences, or Business receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First Preference visas. All Second Preference applicants must have a labor certification approved by the DOL, or Schedule A designation. A job offer is required and the U.S. employer must file a petition on behalf of the applicant. An individual may apply for exemption from the job offer and labor certification if the exemption would be in the national interest.

Employment Third Preference (EB-3)

Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First and Second Preference visas. All Third Preference applicants require an approved I-140 petition filed by the prospective employer. All such workers require a labor certification, or Schedule A designation. Currently only nurses and physical therapists qualify for Schedule A designation. There are three subgroups within this category:

1. Skilled workers are persons capable of performing a job requiring at least two years’ training or experience;
2. Professionals with a baccalaureate degree are members of a profession with at least a university bachelor’s degree; and
3. Other workers are those persons capable of filling positions requiring less than two years’ training or experience.

Employment Fourth Preference (EB-4)

Special Immigrants receive 7.1 percent of the yearly worldwide limit. All such applicants must be the beneficiary of an approved I-360, Petition for Special Immigrant, except overseas employees of the U.S. Government who must use Form DS-1884. There are six subgroups: 1) Religious workers coming to carry on the vocation of a minister of religion, or to work in a professional capacity in a religious vocation, or to work for a tax-exempt organization affiliated with a religious denomination; 2) Certain overseas employees of the U.S. Government; 3) Former employees of the Panama Canal Company; 4) Retired employees of international organizations; 5) Certain dependents of international organization employees; and 6) Certain members of the U.S. Armed Forces.

Employment Fifth Preference (EB-5)

Employment Creation Investors receive 7.1 percent of the yearly worldwide limit. All applicants must file a Form I-526, Immigrant Petition by Alien Entrepreneur, with the USCIS. To qualify, an alien must invest between U.S. $500,000 and $1,000,000, depending on the employment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.

I-140 Immigrant Petition

All intending immigrants who plan to base their immigrant visa application on employment in the United States must obtain an approved immigrant visa petition from the USCIS. If a necessary labor certification is granted, the employer may then file a Form I-140, Petition for Prospective Immigrant Employee, with the USCIS for the appropriate employment-based preference category.

Visa Ineligibility / Waiver

The immigration laws of the United States, in order to protect the health, welfare, and security of the U.S., prohibit the issuance of a visa to certain applicants. Examples of applicants who must be refused visas are those who: have a communicable disease, or have a dangerous physical or mental disorder; have committed serious criminal acts; are terrorists, subversives, members of a totalitarian party, or former Nazi war criminals; have used illegal means to enter the U.S.; or are ineligible for citizenship. Some former exchange visitors must live abroad for two years. Physicians who intend to practice medicine must pass a qualifying exam before receiving immigrant visas. If found to be ineligible, the consular officer will advise the applicant of any waivers.

Other Important Information

Documents for Visa Application

All applicants must submit certain personal documents such as passports, birth certificates, police certificates, and other civil documents, as well as evidence that they will not become public charges in the United States. The consular officer will inform visa applicants of the documents needed as their applications are processed. Before the issuance of an immigrant visa, every applicant, regardless of age, must undergo a medical examination. The examination will be conducted by a doctor designated by the consular officer. The applicant must pay for the examination.

Numerical Limitations

Whenever there are more qualified applicants for a category than there are available numbers, the category will be considered oversubscribed, and immigrant visas will be issued in the chronological order in which the petitions were filed until the numerical limit for the category is reached. The filing date of a petition becomes the applicant’s priority date. Immigrant visas cannot be issued until an applicant’s priority date is reached. In certain heavily oversubscribed categories, there may be a waiting period of several years before a priority date is reached. For the latest priority dates, see the Department of State’s visa bulletin website at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.

Source:
UNITED STATES DEPARTMENT OF STATE
PUBLICATION 10071
Bureau of Consular Affairs, Visa Services