To obtain permanent residence through U.S. employment, the foreign national must first have an approved nonimmigrant visa (i.e., H-1B, L-1, etc.). Employment-based immigration is divided into five different preference categories, each of which has an overall limit of available immigrant visas. The first three employment-based categories are subject to an overall annual limit of 120,000 visas. The other two employment-based categories are each allotted 10,000 visas annually.
Certain preference categories within the employment-based immigration category may require an approved PERM labor certification application from the Department of Labor before an immigrant visa petition can be filed with U.S. Citizenship and Immigration Services (USCIS). A certified PERM labor certification application is a determination by the U.S. Department of Labor that the applicant’s skills are in short supply in the U.S. and that the applicant’s employment will not adversely affect U.S. workers.
The following is a description of the most relevant employment-based preference categories:
First Preference (EB-1): Priority Workers
Individuals of extraordinary ability in the sciences, arts, education, business, or athletics – no PERM labor certification application is required in this category.
Outstanding professors and researchers – no PERM labor certification application is required in this category.
Multinational managers and executives subject to international transfer to the U.S. – no PERM labor certification application is required in this category.
Second Preference (EB-2): Professionals Holding Advanced Degrees and Persons of Exceptional Ability
Individuals of exceptional ability in the sciences, arts or business.
Advanced degree professionals.
A Second Preference applicant must generally have a PERM labor certification application approved by the Department of Labor.
Third Preference (EB-3): Skilled Workers, Professionals and Unskilled Workers (Other Workers)
Skilled workers: individuals with two years’ training or experience not employed in work of a seasonal or temporary nature.
Professionals: professionals with bachelor’s degrees not qualifying in the second preference.
Unskilled workers: individuals capable of filling positions that require less than two years’ training or experience that are not temporary or seasonal.
A Third Preference applicant generally requires a PERM labor certification application approved by the Department of Labor.
Fourth Preference (EB-4): Certain Special Immigrants
Certain special immigrants including those in religious vocations.
Fifth Preference (EB-5): Immigrant Investors
Alien investors in new commercial enterprises.
Process for Filing an Employment-Based Immigrant Visa Petition
The procedure for obtaining an employment-based immigrant visa involves filing an Immigrant Visa petition (Form I-140) with the U.S. Citizenship and Immigration Services (USCIS). For those categories where no PERM labor certification application is required, the immigrant visa petition is filed with the required supporting documentation to demonstrate that the beneficiary meets the necessary qualifications. For those employment-based preference categories where a PERM labor certification application is required, the immigrant visa petition is filed with the original approved labor certification and other supporting documentation to prove that the beneficiary meets the requirements stated on the labor certification.
Once USCIS approves the immigrant visa petition, the applicant is classified as a person qualified to immigrate. This is the first step towards obtaining permanent residency through the employment-based preference categories. A beneficiary, who has been classified as a person qualified to immigrate in one of the preference categories, can then apply for permanent residency. This application can be made at a U.S. Consulate (“consular processing”) or, if the beneficiary is in the United States and is eligible, an application to “adjust status” from that of a nonimmigrant to that of an immigrant (I-485 application) can be made in the United States. If an immigrant visa is available, the immigrant visa petition and the Application to Adjust Status can be filed concurrently with USCIS. This is intended to shorten the processing time for Applications to Adjust Status. If an immigrant visa is not available, then the immigrant visa petition must first be filed and the Application to Adjust Status is filed at a later date whenever the immigrant visa becomes available.