Employment/Investment-Based Immigrants
Family-Sponsored Immigrants
Refugee
and Asylum Benefits
Suspension of Deportation / Cancellation of Removal
Diversity (DV) Visas Lottery
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Employment-based
immigrant categories provide a variety
of options to potential immigrants.
There are five main categories,
each with a 40,000 annual visa allocation.
To obtain an employment immigrant
visa, it is often necessary to obtain
a labor certification from the Department
of Labor. The agency must certify
that there are no qualified, willing
and able U.S. workers to perform
the job, and that the employment
of the foreign worker will not adversely
impact the wages and conditions of
employment of similarly placed U.S.
workers. All first, fourth
and fifth preference immigrants are
exempt from a labor certification
requirement, while the majority of
second- and third-preference immigrants
are not.
First Preference
The first preference immigrant
category is most desirable because
it can be processed relatively
quickly. There are three
groups: A) persons with extraordinary
abilities in the sciences, arts,
education, business or athletics;
B) outstanding professors and researchers;
and, C) multinational executives
or managers.
Extraordinary Ability
Persons of extraordinary ability
in the sciences, arts, education,
business or athletics, do not
require job offers and can self-sponsor.
This category is available to
a small percentage of people
who have risen to the top of
their field.
This is a similar category to
the O-1 petition, as it has almost
identical legal requirement.
However, to qualify for this
immigrant classification, the
beneficiary must demonstrate
that he or she is coming to the
U.S. to work in the area of expertise.
Outstanding Professors and Researchers
This classification is available
to outstanding professors and
researchers with three years
of teaching or research experience.
A job offer for a permanent position
from a U.S. research or teaching
institution is required. Individuals
who work as researchers for a
private employer may qualify
if the company employs at least
three full-time researchers.
Managers and Executives
Managers and Executives of companies
with U.S. affiliates are eligible
to obtain permanent residence
under the first preference category,
if their services are required
permanently by the U.S. company.
They must have been employed
by the overseas affiliate company
for at least one of the three
years immediately preceding their
transfer to the United States,
in a managerial or executive
capacity. The
U.S. company must also have been
in existence for at least one
year.
Individuals who have qualified
for the L-1A visa should be able
to meet the legal requirements
of this immigrant classification.
Second Preference
The second preference visa
category is for professionals holding
an advanced degree (at least a Master's
degree or a Bachelor's degree
followed by five years of progressively
senior work experience). Also, the
job must require such qualifications.
Individuals with exceptional abilities
in the sciences, arts, or business
may also qualify under this category.
This category usually requires a
Department of Labor certification,
although it is possible to obtain
a waiver, if it can be shown that
the employment of the applicant will
be in the "national
interest," a broadly defined
term. Since October 2005, this
category has experienced substantial
swings in immigrant visa availability.
Currently, there is a backlog of
several years for Chinese and Indian
nationals, resulting in processing
delays of "green
card" applications
for these nationalities.
PERM Employment Certification
Under the Immigration and Nationality
Act, U.S. employers wishing to
sponsor foreign workers for U.S.
permanent residence must first
undertake good-faith recruitment
efforts to consider applications
from all minimally qualified
U.S. candidates for specific
positions sought to be certified.
To receive certification (and
therefore to qualify a selected
foreign worker for permanent
residence), the employer must
attest that there are no qualified,
able, willing and available U.S.
workers to perform the job and
that the employment of a foreign
worker will not adversely impact
the wages and working conditions
of similarly employed U.S. workers.
This program is open to a wide
range of positions and is especially
useful to those qualifying as
professionals for jobs requiring
undergraduate and graduate degrees.
National Interest Waiver
The
USCIS may waive the labor certification
process if it is in the national
interest. This is an attractive
category because individuals
may self-file without a U.S.
employer. To demonstrate
national interest, the petitioner
must show that (a) s/he seeks
employment in an area of "substantial
intrinsic merit;" (b) the
benefit to the U.S. will be national
in scope; and (c) national interest
would be adversely affected if
labor certification were required.
Schedule A Group II
Individuals with exceptional
abilities in sciences, arts or
performing arts who are sponsored
by an employer may utilize this
classification to seek permanent
residence. A labor certification
is not required, and the petition
is filed directly with the USCIS.
Petitioner is required to satisfy
two sets of regulations (the
Department of Labor and the USCIS)
in order to qualify for this
immigrant classification. Generally,
this category is rarely used,
since it is duplicative of the
EB-1 legal standards.
Third Preference
The third preference immigrant
visa category usually requires a
labor certification except for registered
nurses and physical therapists. It
is divided into three separate categories: A)
one for professionals with Bachelor's
degrees; B) another for individuals
performing a job which requires at
least two years of education, experience
or training; and C) one for other
workers, including individuals performing
jobs which require less than two
years of education, training or experience.
Persons in this last category are
only eligible to compete for 10,000
visas. As
with the second preference visa category,
the third preference category has
developed substantial backlogs, resulting
in substantial times.
PERM Employment Certification
Under the Immigration and Nationality
Act, U.S. employers wishing to
sponsor foreign workers for U.S.
permanent residence must first
undertake good-faith recruitment
efforts to consider applications
from all minimally qualified U.S.
candidates for specific positions
sought to be certified. To
receive certification (and therefore,
to qualify a selected foreign worker
for permanent residence), the employer
must attest that there are no qualified,
able, willing and available U.S.
workers to perform the job and
that the employment of a foreign
worker will not adversely impact
the wages and working conditions
of similarly employed U.S. workers.
This program is open to a wide
range of positions and is especially
useful to those qualifying as professionals
for jobs requiring undergraduate
and graduate degrees.
Schedule A Group I
The Department of Labor (DOL)
has continued to recognize that
there is a shortage of available
U.S. workers in certain occupations,
and it would not be appropriate
to spend time, effort, and expense
in testing the labor market.
These are called Schedule A occupations—a
special "pre-certified" category
of occupations that are exempted
from the labor certification
process. Schedule A consists
of two groups: Group
I, which includes professional
nurses and physical
therapists and Group
II, which includes individuals
of exceptional ability in the
arts, sciences, and performing
arts.
To qualify as a professional
nurse, the beneficiary
must have completed at least
two years of education in nursing.
Nurses educated outside of
the United States must possess
a valid license in their home
country. In addition,
the beneficiary must have (i)
a Certificate from the Commission
on Graduates of Foreign Nursing
Schools (CGFNS); or (ii)
a permanent, full, and unrestricted
license to practice professional
nursing in the state of intended
employment; or (iii)
has passed the National Council
Licensure Examination for Registered
Nurses (NCLEX-RN) administered
by the National Council of
State Boards of Nursing.
To qualify as a physical
therapist, the beneficiary
must have a post-baccalaureate
degree in physical therapy
from an accredited education
program in the U.S. or overseas.
Licensure is not a prerequisite
to filing of a Schedule A petition
for physical therapists. Rather,
the foreign national need only
"possess all the qualifications
necessary to take the physical
therapist licensing examination"
in the state of intended employment.
Furthermore, both professional
nurses and physical therapists
must have a job offer for a permanent
position and obtain a VisaScreen
Certificate, which verifies that
the foreign health care worker's
education, training, licensing,
experience, and English competency
are comparable to American health
care workers.
Fourth Preference
The fourth preference category
includes the religious worker
category. These "special
immigrants" have a 10,000 annual
visa limit. Ordained ministers,
as well as other religious workers
whose services are required by nonprofit
religious or other qualifying organizations,
can benefit. This includes
ministers, religious professionals,
and a broad range of religious workers.
These two last groups will only
be eligible until September 30,
2008.
Fifth Preference Investor
The fifth preference investor category
is reserved for immigrants who
make large investments. Ten
thousand visas are allocated annually
to individuals who invest $1 million
and create at least ten new jobs.
The law permits the amount to be
reduced to $500,000 if the business
is located in a rural area, or
in an urban area with high unemployment.
Many desirable areas have been
designated as high unemployment
areas which qualify investors to
obtain immigrant visas with a $500,000
investment, provided they create
ten jobs. The
requirement of ten full-time jobs—excluding
independent contractors and immediate
family members—is usually
the obstacle. It is possible to
qualify with investments in troubled
businesses which lost at least
20 percent annually for two successive
years prior to filing. Investments
in troubled businesses sometimes
allow an applicant to show that
the ten jobs have been saved rather
than created. The immigrant
investor category provides for
a conditional green card. Twenty-one
months after approval, a new petition
must be filed to remove the conditional
nature of the green card.
Immigrant Investor Pilot Program
The Immigrant Investor Pilot
Program allows applicants
to make qualifying investments
in commercial enterprises in designated
regional centers. The Pilot
Program does not require the investor
to directly hire ten qualified
workers. Instead, the qualifying
employees may include individuals
who provide services or a job
that has been created indirectly by
the investment in the new commercial
enterprise.
Artists/Athletes/Entertainers
If you are a talented artist, athlete
or entertainer who has been widely
recognized or awarded for excellence
in your field of endeavor, you may
be able to petition for U.S. residency
as an Alien of Extraordinary Ability. Petitioning
under this visa category does not
require the sponsorship from an employer,
as several other visa types do. However,
an EB-1 visa petition requires very
significant and widely recognized
achievement in your pursuit at
the level of major symphony soloists,
Olympic medal winners and artists
who have won international awards. Please
contact us for a fact-specific review
of your case
Physicians
Like all intending immigrants, physicians
may file for permanent residency
through employment or family-based
petitions, asylum, million- or half-of-million-dollar
investment, or by winning a Diversity
Visa. In addition, primary
care physicians who make a commitment
to serve for five years in medically
underserved areas can file for permanent
residency through an employment-based
immigrant category called the "National
Interest Waiver" ("NIW").
The NIW petition can be filed through
an employer or through the physician's
own practice. If it will be
filed through an employer, the physician
must submit employment contract(s)
totaling a minimum of five years.
Physicians who are self-employed
must submit business plans. Additionally,
physicians must submit a recently
dated public interest attestation
from the State Health Department
or a federal agency.
The NIW petition may be filed at
any time before, during or after
the three-year J-1 waiver commitment.
The physicians and their accompanying
family members may also file concurrent
adjustment of status applications
when visas numbers are available.
However, the adjustment of status
application will not be granted until
the five-year commitment is completed.
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