Employment-Based Immigration Categories

(source: AILA)

Employment based immigration, with a few exceptions such as special immigrants, persons of extraordinary ability, national interest waivers and investors, requires that an employer or prospective employer submit a petition on behalf of a foreign national. Typically, employment based petitions are filed with the INS Service Center having jurisdiction over the intended place of employment. This is done by filing an I-140, Immigrant Petition for Alien Worker, with INS. Congress has designated groups to which it gives preference in immigration to the United States, based on preference categories.

Filing an employment based petition under one of the preference categories is the first step in a multi-step process necessary toward the goal of attaining permanent resident status — which confers on foreign nationals the right to live and work in the United States on a permanent basis. Employment based petitions must be approved by INS in order for the foreign national to then apply for permanent resident status. The latter application can be made at a U.S. consulate outside of the United States or by filing an application with INS to adjust status in the United States.

The Employment Preference System allows certain immigrants to obtain permanent residence (green cards) in the United States. Currently, immigration law allots 140,000 employment-based visas to immigrants. These employment-based visas are divided into the following categories:

First Preference: Up to 40,000 visas (28.6%) a year may be issued to priority workers. People who have extraordinary ability or who are outstanding professors and researchers in their field and certain multinational executives and managers fall into this category. In addition, any visas left over from the fourth and fifth preferences (see below) are added to this category.

Second Preference: Up to 40,000 (28.6%) visas a year (plus any visas left over from the first preference) may be issued to persons who are members of the professions holding advanced degrees or aliens of exceptional ability in their field.

Third Preference: Up to 40,000 (28.6%) visas a year (plus any visas left over from the first and second preferences) may be issued to skilled workers, professionals, and other workers. The other workers category covers workers who are capable of performing unskilled labor, and who are not temporary or seasonal. Workers in this category are limited to 5,000 visas per year. Skilled workers must be capable of performing skilled labor requiring at least two years training or experience.

Fourth Preference: Up to 10,000 (7.1%) visas a year may be issued to certain special immigrants, including ministers, religious workers, former U.S. government employees and others.

Fifth Preference: Up to 10,000 (7.1%) visas a year may be issued to persons who have between $500,000 and $3 million to invest in a job-creating enterprise in the U.S. At least 10 U.S. workers must be employed by each investor. The amount of money can vary depending on which area of the country will benefit from the investment. If the investor fails to meet the conditions specified, he or she can lose permanent resident status.