Introduction to Applying for Employment-Based Immigrant Visas

INTRODUCTION TO APPLYING FOR EMPLOYMENT-BASED IMMIGRANT VISAS

Each fiscal year, the United States makes available a total of 140,000 immigrant visas covering five separate employment-based preference categories.[1] [2] Applicants who have a sponsor and meet the requirements for the employment-based category for which they are applying are eligible to obtain an employment-based immigrant visa, so long as they are admissible to the United States. Applicants may either apply for an employment-based immigrant visa to enter the United States or apply to adjust from a nonimmigrant status, most commonly H-1B nonimmigrant visa status, to an employment-based visa status.[3]

PREFERENCE CATEGORIES FOR EMPLOYMENT-BASED IMMIGRANT VISAS
There are five preference categories for employment-based immigrant visas.[4] The five categories are:

• EB-1 (Priority worker)
• EB-2 (Professional with advanced degree or person with exceptional ability)
• EB-3 (Skilled or professional worker)
• EB-4 (Special immigrants such as religious workers)
• EB-5 (Immigrant investors)

RULES FOR APPLYING FOR AN EMPLOYMENT-BASED IMMIGRANT VISA
A foreign national usually must have an employer or prospective employer to act as a sponsor and petition for his or her employment-based immigrant visa. There are limited circumstances where an applicant may self-sponsor: if he or she is classified as “an alien of extraordinary ability” under the first preference classification[5] or if his or her application is deemed to be “in the national interest” under the second preference classification[6]. [7] However, the vast majority of applicants will depend on an employer or prospective employer to act as a sponsor. The following are the steps that an employer or prospective employer must satisfy for a successful application:

1. Employer files a labor certification application

On a labor certification application, the employer or prospective employer must demonstrate that there are no qualified, willing, or able United States workers for the full time position that is being petitioned for.[8] To do this, the employer or prospective employer must demonstrate that he or she had made a good faith and fair effort to recruit a qualified United States worker for the position.[9] Provided this requirement is satisfied, the Department of Labor will grant labor certification.

Petitions for physical therapists and registered nurses[10] are exempt from the labor certification requirement. Petitions for aliens of extraordinary ability, outstanding professors and researches, and multinational managers who fall under the first preference classification are also exempt from this requirement.[11] Foreign nationals who fall under the second preference classification may be granted waivers from the labor certification requirement if a waiver is determined to be in the national interest.[12] [13]

2. Employer files an immigrant visa petition[14]

Employers must file an immigrant visa petition on a Form I-140 Immigrant Petition for an Alien Worker. In order to do this, the labor certification requirement must have been satisfied, not applicable, or waived.[15] United States Citizenship and Immigration Services (USCIS) will determine if the position on the Form I-140 is in the classification that is being applied for, that the foreign national is qualified for the position, and that the employer has and will have the ability to pay the foreign national the offered wage.[16]

ADJUSTMENT OF STATUS AND CONSULAR PROCESSING
After his or her Form I-140 Immigrant Petition for an Alien Worker has been approved, there are two processes through which a foreign national may seek permanent resident status in the United States.[17] In both processes, the foreign national must demonstrate that he or she and accompanying family are admissible to the United States as immigrants.[18] Both the adjustment of status and consular processes require medical examinations, background checks, and a determination that the resident alien has no hitherto undiscovered immigration violations or factors that would make him or her inadmissible to the United States.[19]

Upon being approved for adjustment of status or by consular process, the resident alien will be issued an I-551 permanent resident card, more commonly known as a “green card.”[20]

1. Adjustment from Lawful Status in the United States to Permanent Resident Status

In order to apply for adjustment of status from lawful status in the United States to permanent resident status, the foreign national must either be already in the United States in lawful status or in the United States and qualified for an exemption from the lawful status requirement.[21] In either case, applying for adjustment of status allows the foreign national to obtain his or her permanent resident status without leaving the United States.[22] Provided that the foreign national is admissible to the United States and that the visa he or she is seeking is immediately available, he or she will receive an I-551 permanent resident card.[23] [24]

Applicants on H-1B status who face the expiration of their durations of stay on H-1B status but have an approved I-140 Immigrant Petition for an Alien Worker may be eligible to have their H-1B status extended for either one or three years while they wait for an available I-551 permanent resident card.[25] [26] [27]

2. Obtaining Permanent Resident Status through Consular Process

Foreign nationals who are not present in the United States on lawful status must instead go through consular process.[28] The foreign national applies for an immigrant visa at a United States consulate abroad. If the foreign national is found eligible, he or she will be provided with a visa to travel to the United States to seek admission at a port of entry. Upon reaching a port of entry to the United States, a U.S. Customs and Border Protection inspector assesses the foreign national’s case for admission.[29] [30] Provided that the inspector finds that the foreign national is in fact admissible under the classification on the visa obtained from the consulate, the foreign national is admitted to the United States as a resident alien and provided with an I-551 permanent resident card.[31]

ANNUAL LIMITS ON ALLOCATING IMMIGRANT VISAS AND THE VISA BULLETIN
Because the demand for employment-based immigrant visas is far greater than the supply, the length of the application process is highly variable.[32] In addition to the annual limit on available work-based immigrant visas per preference category, there are national limits as well.[33] The United States Department of State (DOS) publishes on a monthly basis in the Visa Bulletin which foreign nationals are eligible to apply for work-based immigrant visas that month.[34] Early applicants take priority over later applicants. The priority date on a visa application is the date that his or her employment certification application was filed, or if not applicable, the date on which that which his or her immigrant petition was filed.[35] [36] A foreign national may apply for an immigrant visa or for adjustment of status once the cutoff date on the monthly Visa Bulletin is later than the first petition by his or her sponsor.[37]

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[1] Page 7 (ALIA’s Focus on Immigration Practice Under AC21)
[2] INA §201
[3] 7
[4] Id.
[5] INA §203(b)(I)(A), 8 CFR §204.S(h)(S)
[6] INA §203(b)(2)(B)
[7] 7
[8] 20 CFR §656.1(a)(1), 20 CFR §656.3
[9] 20 CFR §656.17(e)
[10] 20 CFR §656.5
[11] 7-8
[12] Id.
[13] INA §203(b )(2)(B)
[14] 8
[15] 8 CFR §204.5(a)
[16] 8.
[17] Id.
[18] Id.
[19] 8-9
[20] 9
[21] Id.
[22] Id.
[23] INA §245(a).
[24] 9
[25] AC21 §§104(c), AC21 §§106(a)
[26] 11-12
[27] My next summary is about these extensions, so this might be a good place to link to that.
[28] Id.
[29] INA §235(a)(1)
[30] 9
[31] 9
[32] 10
[33] INA §235(a)(1)
[34] 9
[35] 8 CPR §204.S(d)
[36] 9-10
[37] 10