Employment-Based Immigration
This document is intended for use by students, staff, faculty,
and departments of the University of New Hampshire. It is a basic
overview of the
The worldwide level for annual employment-based visas is 140,000. Approval to immigrate under this section of the law usually requires the employer to file an Approved Application for Alien Labor Certification with the Department of Labor.
Legislation passed in 1990, revised employment-based immigration by establishing a category of "Priority Workers". If a foreign national can qualify as a Priority Worker, employers may by-pass the lengthy Labor Certification process and file a petition for an immigrant visa directly with the U.S. Citizenship and Immigration Services (USCIS) .
First Preference Employment-based category:
- The Priority Worker Categories
- Aliens of Extraordinary Ability
- Outstanding Professors and Researchers
- Multinational Managers and Executives
Second Preference Employment-based category:
- Professionals with Advanced Degrees
- Persons of Exceptional Ability in the Arts, Sciences or Business
Third Preference Employment-based category:
- Professionals with Bachelor's Degrees
- Skilled Workers
- Other Workers
Fourth Preference Employment-based category:
- Religious Workers
- Former U.S. Government employees and other non-employment related categories
Fifth Preference Employment-based category:
- Those individuals who make substantial investments
in a business in the
Special Handling for a University Professor
First Preference: Priority Workers
No labor certification is required for any of the Priority Worker categories
- Extraordinary Ability in the Arts, Sciences, Education, Business or Athletics. This category is reserved for the finest in any given field. It is limited to "that small percentage of individuals who have risen to the very top of their fields of endeavor".
- An individual who meets the criteria for this category may be sponsored by an employer, or may self petition. However, evidence of adequate financial resources must be submitted with a self- petition.
- Extraordinary Ability requires demonstration that an individual has achieved sustained national or international acclaim in his/her field as evidenced through extensive documentation.
- A foreign national applying
for residency in this category must seek to immigrate to
the
- Outstanding Professors and Researchers. This immigrant classification is for professors and researchers who have achieved peer recognition based on respected published work or other distinctions.
- To qualify, the individual
must be internationally recognized as outstanding in
a specific academic area; have a minimum of three years of
experience teaching or researching in that area and be immigrating
to the
- a tenured or tenure-track teaching position;
- permanent research position in the area of expertise.,
- a comparable position to conduct research within a department, division, or institute of a private employer.
- Experience in teaching or research while working on an advanced degree will only be acceptable if the person has achieved the degree and the research conducted toward the degree has been recognized as outstanding, or, if the teaching duties involved full course responsibility (not merely grading papers or routine TA work assisting the professor).
- The term permanent in reference to a research position is defined as either tenured or tenure track, or, if the employment is for a term of indefinite or unlimited duration, one in which the employee will ordinarily have an expectation of continued employment .
- In addition, applicants must document that they have at least three years of teaching and/or research experience in the academic field. This evidence must be in the form of letters from current and/or former employers and must include the name and address of the writer, the dates of employment and a description of the duties performed.
View the eligibility requirements for Outstanding Professor or Researcher.
· Multinational
Executives and Managers. This category requires a foreign
national to have been in an executive or managerial capacity
with the sponsoring employer, an affiliate or subsidiary, for
at least one year of the preceding three years prior to submission
of the petition by the employer. He/she must also intend to continue
to work for the same employer, subsidiary, or affiliate in the
Second Preference: Professionals with Advanced Degrees and Persons of Exceptional Ability
A job offer and a Labor Certification are required for all Second Preference categories unless it can be demonstrated that a waiver of this requirement is in the "national interest"
Second preference categories are:
- Professionals Holding Advanced Degrees. This category requires a foreign national to have a minimum of a Masters degree, or a Bachelor's degree plus five years progressive experience in the profession to qualify. (The five years of experience must be documented.) There is no experiential equivalency allowed for a Ph.D.
- Persons of "Exceptional Ability" in the Arts, Sciences or Business. To be eligible for this category the foreign national must demonstrate that he/she has "a degree of expertise which is significantly above that ordinarily encountered in the field." Documentation must be provided to substantiate this claim.
What Do You Mean by "National Interest"?
No Labor certification is required for second preference categories IF they are able to document that granting a waiver of this requirement would be "in the national interest."
What constitutes "national interest" has not been clearly
defined. However, regulations state that the foreign national's
work "must substantially benefit the national economy, cultural,
educational interests, or welfare of the
National Interest Waivers have been granted to scientists instrumental in AIDS research projects, artists who make a unique cultural contribution, physicians who agreed to serve in shortage areas, attorneys who agreed to provide free representation to the needy, and businessmen with proven track records in turning around troubled businesses thus creating or saving jobs for a significant number of U.S. workers. However, over the past two years, it has become increasingly difficult to document national interest and most colleges and universities have discontinued the use of this category.
As explained above, with the exception of priority workers, those
who qualify for national interest waivers and certain university
professors, obtaining
Obtaining
- an application by the employer to the Department of Labor;
- a petition by the employer on behalf of the employee to the U.S. Citizenship and Immigration Services (USCIS);
- an application to USCIS for residency made by the foreign national on his/her own behalf based upon the approval of items 1 and 2 above.
Third Preference:
A labor certification is always required for all three groups in this category.
- Professionals with Bachelor's Degrees. Professionals must have a bachelor's degree and an offer of employment which requires a degree for entry level into the occupation.
- Skilled Workers. Skilled worker jobs require a minimum of two years of training or experience to perform.
- Other Workers. Other workers perform jobs which require less than two years of experience or training. Only 10,000 visas per year are allocated to this category which is currently backlogged. It is currently estimated that the wait to immigrate for other workers is 15 years or more.
A Quick Review of Applying for Permanent Residency
The process of obtaining residency in the
In all cases, the employer submits the applications and petitions for permanent residency on behalf of the foreign national to the Department of Labor and the Bureau of Citizenship and Immigration Services.
Once USCIS has adjudicated the petition favorably, the foreign national must then complete the final stage by filing an Application for Permanent Residency on Form I-485. The spouse and children under the age of 21 obtain derivative status from the principal alien and file applications for residency at the same time.
- The application process includes numerous forms and personal documents pertaining to the applicant and his/her eligible family members.
- Applicants are required to submit copies of birth certificates; marriage certificates; fingerprints; photographs; medical examinations and proof of adequate financial resources.
- The employer is required to provide a current job offer letter. This letter should be dated within one week of the date of application.
Upon final approval of the employee's application for permanent residency, s/he will be notified by letter to go to the USCIS District Office for a passport stamp.
This stamp will indicate that the employee and his/her family
members have been granted permanent residency in the
The actual Alien Registration card ("Green Card") will be sent by mail usually within 2 or 3 months.
