Employment-based Immigrant Petitions
A job offer from a U.S. employer creates another possibility to initiate a permanent residence process. As with family based immigration, the U.S. law also limits the number of immigrant visa numbers available each year for people seeking legal permanent residence through employment.
There are five employment based categories:
1. First Preference – priority workers (EB-1 category), which includes:
a. Aliens with extraordinary ability in sciences, arts, education, business or athletics;
b. Outstanding professors and researchers; and
c. Multinational Executives and Managers.
No job offer is required. No labor certification is required for First Preference applicants.
2. Second Preference – members of the professions holding advanced degrees or aliens of exceptional ability in the sciences, arts, or business (EB-2 category). Applicant must have a job offer and labor certification is required, unless national interest waiver is filed and approved.
• National Interest Waiver (“NIW”)
When filing NIW, the foreign worker qualifying for EB-2 category must explain to the USCIS how society will be benefited by his/her work. National Interest Waivers are most commonly granted to those foreign nationals than can prove their employment in the United States will greatly benefit the U.S. economy.
In December 2016, the Administration Appeals Office (AAO) revisited the previous standard for granting national interest waivers. The AAO decision is Matter of Dhanasar established three factors for determining whether an individual’s work constitutes employment in the national interest of the U.S.
Now, these three factors are:
1. Proposed endeavor must have both substantial merit and national importance;
2. Foreign national must be well positioned to advance the proposed endeavor; and
3. On the balance, it would be beneficial to the U.S. to waive the requirements of the job offer and thus a labor certification.
Although the recent decision is intended to make the waiver more broadly available to foreign nationals pursuing endeavors that benefit the United States, the USCIS still grants the waiver as a matter of its discretion. Please contact us to discuss whether you have chances to qualify for this waiver, and can avoid labor certification process.
3. Third Preference – skilled workers, professionals and other workers (EB-3 category).
a. Professionals – foreign nationals whose job offer requires bachelor’s degree (or foreign equivalent);
b. Skilled Workers – foreign nationals whose job offer requires at least two years of experience; and
c. Other Workers – foreign nationals whose job offer requires less than two years of experience.
A labor certification is required for all categories of workers in third preference. A national interest waiver is not available.
4. Fourth Preference – Special Immigrants – Religious Workers and other various special categories of workers and others.
5. Fifth Preference – Investors – aliens investing the statutory required amount (most often $1,000,000) in a new commercial enterprise that employs at least 10 U.S. workers.
Because of the annual quotas of employment-based visa numbers, the applicants in the backlogged categories (i.e. nationals of India, China in the second employment based category, and nationals of India, China, Philippines and Mexico) may not apply for (or receive) their green cards through adjustment of status at the USCIS or through consular processing at a U.S. consulate abroad before their priority date becomes current.
Please see the Department of State’s most recent Visa Bulletin for verification of visa availability in each category at:
Contact our experienced attorneys in Vienna, Virginia for advice on employment-based Green Card procedure
Attorneys at Partovi Law LLC, have extensive experience working with local businesses as well as big international companies in obtaining employment-based green card for employees. Please call us at 703-752- 6148 to schedule an appointment.