Employment-based immigration allows United States employers to sponsor for lawful permanent residence in the United States foreign nationals who have the skills, ideas, knowledge and talents needed in the United States. Employment-based immigrant classifications fall within the preference system under the Immigration and Nationality Act which sets annual numerical and per-country limits for most family-sponsored and employment-based immigrant visa classifications. Therefore, beneficiaries of immigrant visa petitions in these categories must have a visa available to them before immigrating to the United States, or seeking adjustment of their non-immigrant visa status to that of lawful permanent residents. Unfortunately, due to the large numbers of foreign nationals wishing to immigrate to the United States, some employment immigrant visa categories are oversubscribed resulting in long waits for immigrant visa availability, some which last several years. Visa availability is tracked by the United States Department of State which publishes a monthly Visa Bulletin summarizing the availability of immigrant numbers.
Generally, the foreign national beneficiary must obtain and/or maintain valid nonimmigrant status, or wait abroad during this process. Employment-based immigrant classifications are divided into five categories:
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Priority Workers
This preference category includes individuals of “”sustained national or international acclaim” with “extraordinary ability” in the sciences, arts, education, business or athletics; “outstanding professors and researchers” recognized internationally in a specific academic area; and “certain multinational executives and managers.” Foreign nationals eligible for O-1 or L-1 nonimmigrant visa status often qualify for immigrant status under this category.
Professionals Holding Advanced Degrees Or Exceptional Ability
This category includes foreign nationals who are members of the professions holding advanced degrees or their equivalent, and aliens of documented “exceptional ability” in the sciences, arts, professions or business coming to work for a United States employer in their area of “exceptional ability” and whose work would substantially benefit the United States. A “labor certification” is required as a prerequisite to a visa petition in this category, unless the work is deemed to be “in the national interest” of the United States.
An advanced degree is defined as any U.S. or foreign equivalent academic or professional degree “above that of a baccalaureate”, or such a degree or foreign equivalent followed by at least five years progressive experience in the specialty. Furthermore, if a doctoral degree is customarily required, the person must have a doctorate or its foreign equivalent.
Professionals, Skilled And Unskilled Workers
This preference includes foreign nationals who are professionals holding Bachelor’s Degrees, skilled workers (i.e. performing labor requiring at least two years training or experience) and unskilled workers (i.e. requiring less than two years training or experience). A “labor certification” is required for all third preference immigrants.
However, due to the shortage of registered nurses and physical therapists in the United States, the law currently provides for their automatic labor certification under Schedule A. Schedule A is a list of pre-certified occupations for which the Secretary of the Department of Labor previously has determined that there are not sufficient U.S. workers who are able, willing, qualified and available and that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of aliens in such occupations. As a result, foreign Nurses and physical therapists that have passed the CGFNS exam or are certified as an NCLEX-RN or by FCCPT can obtain permanent residence without their petitioning employer needing to test the labor market prior to filing a visa petition on their behalf.
Special Immigrants
This preference includes foreign nationals who are ministers, religious workers, victims of domestic violence and certain other immigrants. Foreign nationals eligible for R-1 nonimmigrant visa status often eventually qualify for immigrant status under this category.
Entrepreneur/Employment Creation Visa (EB-5 Visa)
This preference category means to stimulate investment and employment creation in the United States by providing permanent residence in the United States to foreign nationals who invest $1,000,000.00 (may be $500,000.00 under certain circumstances) in a job-creating enterprise (10 or more jobs) which benefits the United States. This preference category does not require an offer of employment from a United States employer and the foreign national entrepreneur may self petition for U.S. permanent residence.
To qualify the foreign entrepreneur must invest in a “new commercial enterprise” which can be a startup business; a business that is purchased and restructured; or a troubled business in which the entrepreneur substantially changes/expands (forty percent increase) the net worth or number of employees of the business. Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to, a sole proprietorship, partnership, holding company, joint venture, corporation, business trust, or other entity that may be publicly or privately owned. This definition includes a commercial enterprise consisting of a holding company and it’s wholly owned subsidiaries, provided that such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.
Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair market value in United States dollars. Assets acquired, directly or indirectly, by unlawful (i.e. criminal) means are not considered capital for purposes of this category.
The investor must be actively involved in the management of the business. However, while an investor may employ his family members in the new enterprise, spouse and children do not count toward the 10-employee minimum. “Employee” is defined as individual who provides services or labor for, and who receives wages or other remuneration directly from, the new commercial enterprise and does not include independent contractors. “Full-time employment” requires a minimum of 35 working hours per week.
After two years, the investor must demonstrate that he/she has satisfied the aforementioned conditions in order to maintain lawful permanent residence in the United States.