Employment Based Immigration - Szew Law Group

Are you:

  1. a person with extraordinary ability in the sciences, art, education, business or athletics
  2. an outstanding professor or researcher
  3. a multinational executive or manager
  4. a person holding an advanced degree (at least a masters degree)
  5. a person with bachelors degrees
  6. a Person with a position that requires at least 2 years of education, training or experience
  7. a religious worker
  8. a large investor

There are three main categories under employment based immigration, each with a 40,000 annual visa allocation.

To obtain permanent residence through an employment relationship, the process usually begins with obtaining a labor certification. This requires the U.S. Department of Labor to state that there are no qualified U.S. workers that can fill the position that your employer is sponsoring you for. For this reason, it is desirable to qualify under a labor certification exempt category. All first, fourth and fifth preference immigrants are exempt, and some second and third preference immigrants are exempt also.

The first preference immigrant category is most desirable because it can be processed quickly. There are three groups: A) persons with extraordinary abilities in the sciences, art, education, business or athletics; B) outstanding professors and researchers; and, C) multinational executives or managers.

A) Persons of extraordinary ability in the sciences, art, education, business or athletics, do not require job offers and can process quickly. This category is available to that small percentage of applicants who have risen to the top of their field. The top of their field is a very complex qualification and needs to be analyzed carefully on a case by case basis.

B) More generous standards are available for outstanding professors and researchers with three years of teaching or research experience. A job offer for a permanent position from a U.S. research or teaching institution is required. Since no certification is required from the Department of Labor, these cases can be processed quickly.

C) Managers and Executives of companies with United States affiliates are eligible to obtain permanent residence under the first preference category if their services are required permanently by the United States company. They must have been employed by the overseas affiliate company for at least one of the three years immediately preceding their transfer to the United States, in a managerial or executive capacity. The United States company must also have been in existence for at least one year.

The second preference visa category is for professionals holding an advanced degree (at least a Master’s degree) or a Bachelor’s degree plus 5 years of progressively senior work experience. Also, the job must require such qualifications. It is possible for individuals with exceptional abilities in the sciences, arts, or business to qualify under this category. This category usually requires a Department of Labor certification, although it is possible to obtain a waiver, if it can be shown that the employment of the applicant will be in the “national interest”, a very difficult qualification to prove.

The third preference immigrant visa category usually requires a labor certification except for registered nurses and physical therapists. It is divided into three separate categories: A) one for professionals with Bachelor’s degrees; B) another for individuals performing a job which requires at least two years of education, experience or training; and C) one for other workers, including individuals performing jobs which require less than two years of education, training or experience. Persons in this last category are only eligible to compete for 10,000 visas. This has resulted in long waiting periods. However, there is no waiting line for most other employment third preference immigrants but labor certifications routinely take over two years to process.

The fourth preference category includes the religious workers category. These “special immigrants” have a 10,000 annual visa limit. Ordained ministers, as well as other religious workers whose services are required by non-profit religious, or other qualifying, organizations can benefit. This includes ministers, religious professionals, and a broad range of religious workers. These two last groups will only be eligible until October 1, 2000. This is a very specialized area and our office should be contacted to determine if you qualify under this preference.

To obtain the actual waiting times for each preference please contact our office.