Temporary Working Visas

The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas which are divided into five preference categories. They may require a labor certification from the U.S. Department of Labor (DOL), and the filing of a petition with the Bureau of Citizenship and Immigration Services (“BCIS”).

CATEGORIES

Employment First Preference (EB-1A,B & C): Priority Workers

This preference, consisting of three types of persons, is the most elite and fastest route to permanent residence. It is a nearly direct counterpart to the temporary O-1, P-1 and L-1 Visas. So, if the person has qualified for one of those temporary working visas, then s(he) is well-positioned for this category. No labor certification is required. If the person qualifies for any of these three categories, then his/her spouse and dependent, unmarried children under 21 also may receive their permanent residence visas at the same.

Within this preference there are three sub-groups:

EB 1-A, Persons of extraordinary ability in the sciences, arts, education, business, or athletics. People who have sustained national or international acclaim and recognition in the field of expertise.

Major Benefit: They do not need labor certification or a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. That means they can file their own petition with the INS, rather than through an employer. O-1 Visa holders often seek to qualify under this category.

EB 1-B, Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. They do not need labor certification but the prospective employer must provide a job offer and file a petition with the INS. O-1 and certain H-1B1 Visa holders often seek to qualify under this category.

EB 1-C, Multinational executives and managers. Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. They do not need labor certification but the prospective employer must provide a job offer and file a petition with the INS. L-1A Visa holders often seek to qualify under this category.

Employment Second Preference (EB-2)

This preference, consisting of two types of persons, is also an elite and fast route to permanent residence. It may be a nearly direct permanent counterpart to the temporary O-1, P-1 and some H-1B1 Visas. So, if the person has qualified for one of those temporary working visas, then s(he) is usually well-positioned for this category.

However, labor certification and an employer acting as petitioner is required except in one instance (national interest waiver) as described below.

EB-2A. Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession.

Some may qualify for waiver of the labor certification requirement if they can satisfy the INS that they work in the national interest. The alien must also demonstrate that he or she is making substantial research or professional contributions to their field of expertise that will benefit at least one national interest of the United States. INS has approved cases for aliens whose work has advanced medicine and healthcare, have improved the economy, have had a favorable impact on the environment, have enhanced the strength of the military, and that have enhanced the quality of education in the United States. The National Interest Waiver petition can be filed by the alien on his or her own behalf and does not require sponsorship by an employer. The National Interest Waiver is a very complex category and each case must be reviewed carefully for qualifications.

EB-2B. 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.

Employment Third Preference (EB-3)

All Third Preference applicants require labor certification and a petition filed by the prospective employer. There are three subgroups within this category:

EB-3A. Professionals with a baccalaureate degree. They are members of a profession with at least a university bachelor's degree. This is the counterpart to the H-1B1 Visa.

EB-3B. Skilled workers are persons capable of performing a job requiring at least two years' training or experience; and

EB-3C. Other workers are those persons capable of filling positions requiring less than two years' training or experience.

LABOR CERTIFICATION

A person whose occupation requires a labor certification must have prearranged employment in the United States. The labor certification process enables certain workers to apply to permanent residence in the United States. If a worker has a Bachelor’s Degree or two or more years experience in a skilled job, he or she may be able to apply for permanent residence through the labor certification process. Labor certification involves several steps, and takes several years. The employer is required to place advertisements and interview other job candidates. If qualified U.S. workers apply for the position and are rejected by the employer, the Department of Labor will not approve a labor certification application. The employer must also agree to pay the prevailing wage for the position offered. This is the salary that the Department of Labor has determined to be appropriate for that job in the employer’s city. The employer may not offer a foreign worker a salary below the prevailing wage. When this labor certification process is successfully completed, then the petitioner may start the case with INS. After the INS has approved the employer’s petition for an immigrant visa, the worker in the United States may apply to INS for permanent residence.