Employment-Based Permanent Residency Categories

Congress has designated preference groups for purposes of immigration. The first three employment-based preference groups are subject to an overall numerical limitation of 120,000 per year. The fourth and fifth preference groups are allotted 10,000 annual visas each. A summary of the preference groups follows.

FIRST PREFERENCE

The first preference is reserved for "priority workers", who fall into three categories: (1) managers and executives subject to international transfer to the U.S.; (2) outstanding professors and researchers; and (3) aliens of "extraordinary ability" in the sciences, arts, education, business, and athletics.

Labor certification is not required for any of these categories. All categories require a job offer and employer sponsorship except for aliens of extraordinary ability.

SECOND PREFERENCE

The second preference is for: (1) aliens of "exceptional ability" in the arts, sciences, or business; and (2) advanced-degree professionals. Labor certification and a job offer are required unless a waiver of those requirements is deemed to be in the national interest.

THIRD PREFERENCE

The third preference includes: (1) professionals with a bachelor's degree; (2) skilled workers (workers filling positions requiring at least two years of training and experience); and (3) unskilled workers. Labor certification and a job offer are required. Only 10,000 visas may be assigned to unskilled workers.

NOTE ON FIRST THREE PREFERENCES

The first three preference categories generally require that a U.S. employer offer the alien full-time permanent employment. Where labor certification is required, the Department of Labor must certify that no qualified U.S. workers were available to fill the position. To qualify for employment-based preferences, the alien must meet the minimum requirements for the job and the employer must be able to pay the alien's salary (which must meet a certain prevailing wage level).

FOURTH PREFERENCE

The fourth preference for "special immigrants" is a very limited category and includes a small allotment of visas for ministers and religious workers.

FIFTH PREFERENCE

The fifth preference is set aside for alien investors in new commercial enterprises. There is an allotment of 10,000 visas per year. No labor certification is required. This category requires the investment of at least $1 million in the enterprise and the creation of full-time employment for not less than 10 U.S. workers.

OVERVIEW OF STEPS TO EMPLOYMENT-BASED PERMANENT RESIDENCY

With certain limited exceptions, there are three steps in an employment-based immigration case:

Step 1:Alien Labor Certification (ALC)

Filed in U.S. with Department of Labor (DOL).
Job requirement and credential analysis.
Preparation of ETA-750A (employer) and B (client).
Local Office (LO) establishes Priority Date (PD).
Determination of Prevailing Wage.
Placement of advertisement.
Job Service listing.
Posting at place of business.
Possible telephone interview with good applicants.
Response to DOL.
Regional Office (RO) adjudicates.

Step 2:Visa Petition (I-140)

Prepared and signed by employer (limited exceptions). Filed in one of the four Regional Service Centers along with an approved Labor Certification, copies of credentials and any other appropriate supporting documentation.

Step 3:Filing of application for permanent residency (I-485 application), with appropriate supporting documentation.

This must occur in one of two ways:

1. Adjustment of Status: filing an I-485 with the Immigration Service Center where the alien resides in the United States, if the following is true:
2. 1. Inspected and admitted.
   2. I-140 approved.
   3. Visa number available (PD current in Visa Bulletin (VB)).
   4. Statutory eligibility.

   OR

3. Consular Processing by Department of State (DOS):
   Application made before the United States Consul in home country or another country if that Consul accepts the case. This method also requires an I-140 approval, a current PD and statutory eligibility.