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Employment-Based Visas

IMPORTANT NOTICE: On March 20, 2009 President Obama signed into law, an extension for “SR” nonminister special immigrant religious workers. [Employment fourth preference (E4)]

Overview
Employment First Preference (E1)
Employment Second Preference (E2)
Employment Third Preference (E3)
Employment Fourth Preference (E4)
Employment Fifth Preference (E5)
Labor Certification
Petitions
Visa Ineligibility/Waiver
Required Documentation
Medical Examinations
Visa Fees
Numerical Limitations
How to Apply for a Social Security Number Card
Additional Information
Further Visa Inquiries

Overview

The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas which are divided into five preference categories. They may require a labor certification from the U.S. Department of Labor (DOL), and the filing of a petition with United States Citizenship and Immigration Services in the Department of Homeland Security (USCIS).

CATEGORIES

Employment First Preference (E1)

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 for Foreign Worker, 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 (E2)

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, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program (later). A job offer is required and the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the alien may file the petition, Form I-140, along with evidence of the national interest. There are two subgroups within this category:

1. Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession; and
2. Persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field.

Employment Third Preference (E3)

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, or evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. 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 (E4)

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. Certain spouses and children may accompany or follow-to-join the principal special immigrant. Different types of special immigrants provided for under immigrant law are listed below:

1. Broadcaster in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization;
2. Minister of Religion;
3. Certain Employees or Former Employees of the U.S. Government Abroad;
4. Employee of the Mission in Hong Kong;
5. Certain Former Employees of the Panama Canal Company or Canal Zone Government;
6. Certain Former Employees of the U.S. Government in the Panama Canal Zone;
7. Certain Former Employees of the Panama Canal Company or Canal Zone Government on April 1, 1979;
8. A. Interpreters and translators of Iraqi or Afghan nationality who have worked directly with the United States armed forces or under Chief of Mission authority as a translator or interpreter for a period of at least 12 months and meet requirements. This classification has an annual numeric limitation of 500 visas through FY 08. For applicants living overseas, see Special Immigrant Visas for Iraqi and Afghan Translators/Interpreters - Frequently Asked Questions for information about criteria, documentary requirements, filing the Form I-360, and more. Also, see USCIS Fact Sheet on Afghan and Iraqi Translators for information including instructions for applicants who are filing in the U.S.
   B. Iraqis who have provided faithful and valuable service while employed by or on behalf of the U.S. government in Iraq for not less than one year after March 20, 2003, and have experienced an ongoing serious threat as a consequence of that employment. This provision was signed into law in January 2008, creating 5,000 special immigrant visas each year for the next five years. The Department of State and the Department of Homeland Security are establishing regulations and procedures to permit applications under the new legislation to begin as soon as possible. At this point we are unable to accept applications for this category of visa until those regulations and procedures have been implemented. Learn more.
9. Certain Foreign Medical Graduates (Adjustments Only);
10. Certain Retired International Organization employees;
11. Certain Spouses of a deceased International Organization Employee;
12. Juvenile Court Dependent (no family member derivatives);
13. Alien Recruited Outside of the United States Who Has Served or is Enlisted to Serve in the U.S. Armed Forces;
14. Certain retired NATO-6 civilians;
15. Certain surviving spouses of deceased NATO-6 civilian employees;
16. Alien beneficiary of a petition or labor certification application filed prior to Sept. 11, 2001, if the petition or application was rendered void due to a terrorist act of Sept. 11, 2001;
17. Certain Religious Workers.

Employment Fifth Preference (E5)

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 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.

Labor Certification

A person whose occupation requires a labor certification must have prearranged employment in the United States.

- Individual Labor Certification

The applicant must complete DOL Form ETA-750B, Statement of Qualifications of Alien, and send this completed form to the prospective employer who completes Form ETA-750A, Application for Alien Employment Certification, Offer of Employment. The prospective employer submits both forms to the local office of the State Employment Service in the area in the United States where the work will be performed. The employer will then be notified by the appropriate regional office of the DOL of its approval or disapproval.

- Schedule A Designation

The Department of Labor has made a schedule of occupations for which it delegates authority to USCIS to approve labor certifications. Schedule A, Group I, includes physical therapists and nurses. Schedule A, Group II includes aliens of exceptional ability in the sciences and arts (except performing arts). To apply for Schedule A designation, the employer must submit a completed, uncertified Form ETA-750 in duplicate to USCIS along with the I-140 petition.

- Labor Market Information Pilot Program

The Immigration Act of 1990 provides for the DOL to establish a Labor Market Information Pilot Program which will define up to ten occupational classifications in which there are labor shortages. For aliens within a listed shortage occupation, a labor certification will be deemed to have been issued for purposes of an employment-based immigrant petition. USCIS can provide further information.

Petitions

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 USCIS. If a necessary labor certification is granted, the employer may then file a Form I-140, Petition for Prospective Immigrant Employee, with 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.

Required Documentation

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.

Medical Examinations

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. Examination costs must be borne by the applicant, in addition to the visa fees.

Visa Fees

The cost of each immigrant visa application processing fee (per person) is (US) $335. Fees must be paid for each intending immigrant, regardless of age, and are not refundable. Local currency equivalents are acceptable. Fees should not be sent to the consular office unless requested specifically. USCIS charges additional fees for filing petitions.

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. Check the Visa Bulletin for the latest priority dates.

How to Apply for a Social Security Number Card

If you are the potential employer of a non-citizen who plans to immigrate to the United States, you can help that potential employee learn how to apply for a social security number card. To learn more about this process, visit the website for the Social Security Administration.

Additional Information

Since no advance assurances can be given that a visa will be issued, applicants are advised not to make any final travel arrangements, not to dispose of their property, and not to give up their jobs until visas have been issued to them. Some visa applications require further administrative processing, which takes additional time after the visa applicant's interview by a Consular Officer. An immigrant visa can be valid for six months from issuance date.

With few exceptions, a person born in the United States has a claim to U.S. citizenship. Persons born in countries other than the U.S. may have a claim, under United States law, to U.S. nationality if either parent was:

• Born or naturalized in the U.S., or
• A U.S. citizen at the applicant's birth.

Any applicant believing he or she may have a claim to United States citizenship should not apply for a visa until his or her citizenship has been determined by the consular office.

Further Visa Inquiries

• Questions on visa application procedures and visa ineligibilities should be made to the American consular office abroad by the applicant. Before submitting your inquiry, we request that you carefully review this web site and also the Embassy Consular web site abroad. Very often you will find the information you need.
• If your inquiry concerns a visa case in progress overseas, you should first contact the U.S. Embassy or Consulate handling your case for status information. Select U.S. Embassy or Consulate, and you can choose the Embassy or Consulate Internet site you need to contact.

Hiring Foreign Workers

Foreign Labor Certification Overview

The Department of Labor issues labor certifications for permanent and temporary employment under the following programs:

Permanent Labor Certification
H-1B Specialty (Professional) Workers
H-2A Temporary Labor Certification (Seasonal Agricultural)
H-2B Temporary Labor Certification (Non-agricultural)
D-1 Crewmembers Certification

Foreign labor certification programs permit U.S. employers to hire foreign workers on a temporary or permanent basis to fill jobs essential to the U.S. economy. Certification may be obtained in cases where it can be demonstrated that there are insufficient qualified U.S. workers available and willing to perform the work at wages that meet or exceed the prevailing wage paid for that occupation in the area of intended employment.

Foreign labor certification programs are designed to assure that the admission of foreign workers into the United States on a permanent or temporary basis will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.

Employment based immigration is a complex process that may involve a number of government agencies within the Federal Department of Labor, the State Department of Labor, the U.S. Citizenship and Immigration Services (CIS) and the Department of State. The Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.) regulates the admission of foreign workers into the United States. The INA designates the Attorney General and the Secretary of State as the principal administrators of its provisions.

About the Foreign Labor Certification Process

Compensation of Foreign Workers

Regulations require that the wages attested to on foreign labor certification applications must be the average wage paid to all other workers in the requested occupation in the area of intended employment. This average wage is referred to as the prevailing wage. See Prevailing Wages for more information.

The employer is not precluded from paying nonimmigrant(s) more than the prevailing wage.

Employer Compliance

The employer should be aware that in filing for a foreign labor certification, the employer is obligated to comply with all employment related laws and regulations. In the case of H-1B Specialty (Professional) Workers and H-2A Temporary Seasonal Agricultural workers, additional obligations also apply. The details on these obligations may be found in the sections detailing H-1B and H-2A. Failure to comply with the established laws and regulations may potentially result in penalties and possible legal action.

The Wage and Hour Division of the Employment Standards Administration (ESA) at the Department of Labor is responsible for investigating and determining an employer's misrepresentation in or failure to comply with the H-1B and H-2A program requirements and with employment laws, principally the Fair Labor Standards Act.

Non-DOL Employment Visas

For information regarding other employment based visas which do not require Department of Labor certification, see the U.S. Department of State's website at this link or the U.S. Citizenship and Immigration Service's website at http://www.uscis.gov.