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Immigration & Nationality Law

“Everywhere immigrants have enriched and strengthened the fabric of American life.”
John F. Kennedy

Permanent employment-based preference system

The Immigration and Nationality Act provides 140,000 employment-based immigrant visas yearly. These available visas are divided among five preference categories. Most employment-based permanent residence petitions require the submission of USCIS Form I-140. The following is a general introduction to the five preference categories.

The First Employment-based Preference for "priority workers"(EB-1)

Priority Workers receive 28.6 percent of the annual worldwide limit (about 40,000 visas). All Priority Workers must be the beneficiaries of an approved Form I-140, Immigrant Petition for Foreign Workers.

There are three sub-groups in this category:

  • EB-1(a): Persons of "extraordinary ability" in the sciences, arts, education, business, and athletics. To qualify as "extraordinary", applicants in this category must submit extensive documentation showing sustained national or international acclaim and recognition in their 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 for which they are recognized to have extraordinary ability. A labor certification is also not required. The applicant (alien) may petition on his or her own behalf.

  • EB-1(b): Outstanding Professors and Researchers. To qualify as an Outstanding professor/researcher, the applicant must have at least three years’ experience in teaching or research, and must be recognized internationally as outstanding in his/her field of endeavor. No labor certification is required for this classification, but the prospective employer (universities or private employers that have established research departments) must provide a job offer and serve as the petitioner in the I-140 petition.

  • EB-1(c): Certain executives and managers subject to an international transfer to the United States. The applicant must have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of aU.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 serve as the petitioner in the I-140 petition.

For a detailed discussion about qualifying for permanent residence in the first employment-based preference, please see EB-1.

The Second Employment-Based preference (EB-2)

There are two subgroups within this category:

  • Professionals holding an advanced degree (beyond a baccalaureate degree) or a baccalaureate degree and at least five years’ progressive experience in the profession; and
  • 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. This preference receives 28.6 percent of the yearly worldwide limit (about 40,000 annual visas, plus any unused Employment First Preference visas.) PERM Labor Certification and a job offer are required for this category unless the job offer is waived by the USCIS in the national interest, the job fits in a Schedule A designation, or the alien establishes that he/she qualifies for one of the deficient occupations in the Labor Market Information Pilot Program.:

  • In case there is no exemption for the labor certification process, the U.S. employer must file a Form I-140 petition based on an approved labor certification on the alien's behalf.
  • Regarding I-140 petitions with a request for a national interest waiver (NIW), the alien may file the petition along with evidence showing their immigration is in the national interest. The National Interest Waiver has become a very popular and important path for many aliens applying for employment-based immigrant visas in the second preference. Consult our experienced immigration attorneys on NIW issues.

The Third Employment-Based Preference (EB-3)

This category covers “Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers.” The Third Preference Employment-Based category receives 28.6 percent of the yearly worldwide limit (about 40,000 annual visas), plus any unused Employment-Based First and Second Preference visas. Only 10,000 visas of the annual quota may be assigned to unskilled workers. All Third Preference applicants require an approved I-140 petition filed by the prospective employer. All such workers require labor certification. There are three subgroups within this category:

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

The labor certification process is discussed in details under PERM Labor Certification.  

The Fourth Employment-Based Preference (EB-4)

Special Immigrants 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. Among the types of individuals who qualify under this preference are:

  • 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;
  • Certain overseas employees of the U.S. Government;
  • Former employees of the Panama Canal Company;
  • Retired employees of international organizations;
  • Certain dependents of international organization employees; and
  • Certain members of the U.S. Armed Forces.

The Fifth Employment-Based Preference (EB-5)

Employment Creation Investor applicants must file a Form I-526, Immigrant Petition by an Alien Entrepreneur. To qualify, an alien must invest a minimum of either U.S. $500,000 or $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.

Temporary employment-based preference system

There are many different temporary employment-based visa classifications.   Most of the classifications are defined in section 101(a)(15) of the Immigration and Nationality Act (INA), and the visa classifications are referred to by the letter and numeral that denotes their subsection of that law. Temporary employment-based visa classifications permit employers to hire and petition for foreign nationals for specific jobs for limited periods. Most temporary workers must work for the employer that petitioned for them and have limited ability to change jobs.  In most cases, they must leave the United States if their status expires or if their employment is terminated.

The visa classifications vary in terms of their eligibility requirements, duration, whether they permit workers to bring dependents, and other factors. Table 1 includes information on several of the most common temporary employment-based visa classifications.