Approximately 140,000 immigrant visas are available each fiscal year for noncitizens (and their spouses and children) who seek to immigrate based on their job skills. The foreign workers must have the right combination of skills, education, and/or work experience and otherwise eligible. U.S. immigration law provides aliens with a variety of ways to become lawful permanent residents (get a Green Card) through employment in the United States. These employment-based “preference immigrant” categories include:

• First preference (EB-1) – priority workers
  • Aliens with extraordinary ability in the sciences, arts, education, business, or athletics;
  • Outstanding professors and researchers; or
  • Certain multinational managers and executives.
• Second preference (EB-2) – aliens who are members of the professions holding advanced degrees or who have exceptional ability (including requests for national interest waivers). 
• Third preference (EB-3) – skilled workers, professionals, or other workers.

First Preference EB-1

Aliens may be eligible for an employment-based, first-preference visa if they are a noncitizen of extraordinary ability (EB-1A), are an outstanding professor or researcher (EB-1B) or are a certain multinational executive or manager (EB-1C).

To qualify for EB-1A status, an applicant must provide evidence of a one-time achievement of a major, internationally recognized award (an Oscar, an Olympic Medal, a Pulitzer, etc.), or meet at least three of the ten listed criteria below (or comparable evidence if any of the criteria do not readily apply):

• Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
• Evidence of your membership in associations in the field which demand outstanding achievement of their members
• Evidence of published material about you in professional or major trade publications or other major media
• Evidence that you have been asked to judge the work of others, either individually or on a panel
• Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
• Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
• Evidence that your work has been displayed at artistic exhibitions or showcases
• Evidence of your performance of a leading or critical role in distinguished organizations
• Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
• Evidence of your commercial successes in the performing arts

In order to demonstrate as an outstanding professor or researcher and to qualify for EB-1B status, an applicant must include evidence of 2 of the 6 listed criteria below (or comparable evidence if any of the criteria do not readily apply):

• Evidence of receipt of major prizes or awards for outstanding achievement
• Evidence of membership in associations that require their members to demonstrate outstanding achievement
• Evidence of published material in professional publications written by others about the noncitizen's work in the academic field
• Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
• Evidence of original scientific or scholarly research contributions in the field
• Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

Applicants who qualify for EB-1A may apply the immigrant visa for themselves by filing a Form I-140, Petition for Alien Worker with the U.S. Citizenship and Immigration Service (“USCIS”). For EB-1B and EB-1C status, the applicants must have had a job offer and their U.S. employers should file the Form I-140 and be able to demonstrate a continuing ability to pay the offered wage as of the priority date.

Second Preference EB-2 and Third Preference EB-3

The vast majority of employment-based green card applicants must already have a job offer from a U.S. employer in order to qualify for the EB-2 and EB-3 employment-based green card categories. The U.S. employer will be considered a sponsor and must obtain an approved labor certification from the U.S Department of Labor (DOL) before they can submit an immigration petition (Form I-140) to the USCIS. This process is formally known as the Program Electronic Review Management System (“PERM”). The PERM process is essentially a test of the U.S. labor market to demonstrate that the foreign worker is not impacting U.S. workers and the U.S. labor market in a negative way. During the PERM process, the employer must advertise the job and conduct a good-faith recruitment to determine if there are “available and qualified” U.S. workers to fill the position. There are three steps required to be taken by the employer in this process:

1. Request a prevailing wage determination from the Department of Labor;
2. Advertise the job and conduct a good-faith recruitment;
3. File the ETA 9089 with the Department of Labor. 

From the date of the PERM approval, the employer has 6 months to file the Form I-140 Immigration Petition on behalf of the employee. This is filed with the USCIS Service Center having jurisdiction over the place of employment. Finally, based on the approved I-140, the beneficiary will apply for adjustment of status in the United States or process at a U.S. consulate or embassy abroad to become a lawful permanent resident (LPR). If an immigrant visa number is immediately available, the I-140 and adjustment of status applications may be filed concurrently. The Department of State publishes a monthly Visa Bulletin to announce visa availability for all the preference categories of employment-based immigration.

National Interest Waivers (NIWs)

          An alternative to having to involve an employer/sponsor in filing a PERM/ labor certification petition is available to talented individuals who can demonstrate accomplishment in their fields or who can show that the work they’re doing will have a particular benefit for the country. This category is called National Interest Waiver (NIW).

National Interest Waivers is a part of the employment-based second preference EB-2 category. NIW eligible aliens must be members of the professions holding advanced degrees or foreign nationals of exceptional ability who can demonstrate that it is in the national interest for U.S. Citizenship and Immigration Service (USCIS) to waive the requirement of a job offer from an employer in the United States in sciences, arts, professions, or business (i.e., waiving the PERM process).

Individuals seeking a NIW must show evidence of an advanced degree or exceptional ability and must also meet three factors that USCIS uses to determine, in its discretion, whether it is in the national interest that USCIS waive the requirement of a job offer, and thus the labor certification. The three factors USCIS considers for a national interest waiver are whether:

• The person’s proposed endeavor has both substantial merit and national importance;

• The person is well positioned to advance the proposed endeavor; and

• It would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

Please do not hesitate to contact our experienced immigration attorneys for any employment immigration questions. Schedule A Consultation.