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employment-based permanent residency

I. Preference Categories

The Immigration Act of 1990 altered traditional employment-based immigration by creating five preference categories for permanent residence:
First Preference (EB1) – Priority Workers
  • Aliens with extraordinary ability in the sciences, arts, education, business, or athletics.
  • Outstanding professors and researchers.
  • Certain multi-national executives and managers.
Second Preference (EB2) – Certain Professionals
  • Members of the professions with advanced degrees or the equivalent.
  • Aliens of exceptional ability in the sciences, arts, or business.
Third Preference (EB3) – General Workers
  • Skilled workers with at least two years training or experience.
  • Professionals with baccalaureate degrees and professional jobs.
  • Other workers or unskilled labor.
Fourth Preference (EB4) – All Special Immigrants Except Returning Residents and Former United States Citizens
  • Ministers of religion with 2 years' experience.
  • Religious workers who are not ministers.
  • Certain United States mission employees in Hong Kong.
  • Certain international organization aliens.
Fifth Preference (EB5) – Employment Creation
Aliens engaging in a new commercial enterprise which has been established or is actively in the process of investing a specified amount creating full-time employment for not fewer than 10 United States workers and which will benefit the United States economy.
The amount of investment is $1 million in a standard metropolitan statistical area in excess of 20,000 inhabitants or $500,000 in a smaller town or a targeted high unemployment area in an inner city or other area.
Such investor will be granted conditional permanent residence on behalf of himself and his family which can be converted to permanent residence after 2 years when such investor files another petition with USCIS illustrating: (1) A commercial enterprise was established by the alien; (2) The alien invested the requisite capital and 10 full-time employees were hired; (3) The investment was funded; and (4) The business is viable.

II. Labor Certification

Some employment-based preference categories require a first step referred to as "labor certification" through the United States Department of Labor (DOL). The certification is from the Secretary of Labor to the Secretary of State and the Attorney General that (1) there are not sufficient United States Citizens or lawful permanent resident workers able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (2) the employment of such aliens will not adversely affect the wages and working conditions of workers in the United States similarly employed.
Some preference categories do not require a labor certification:
  • The 1st preference, 4th preference, and 5th preference do not require a labor certification.
  • The 2nd preference requires a labor certification unless a "National Interest Waiver" is approved by USCIS.
  • The 3rd preference requires a labor certification. There is no waiver of the labor certification requirement.
  • Schedule A does not require a labor certification. This group includes nurses, physical therapists, and persons of exceptional ability in the sciences, arts, and performing arts.

III. Alternatives to Labor Certification

A. National Interest Waiver
The minimum requirements for this waiver includes: (1) the person seeks employment in an area of substantial intrinsic merit; (2) the benefit will be national in scope; and (3) the national interest would be adversely affected if a labor certification were required.
The "national interest" exemption must be significantly higher than that required to establish prospective national benefit for all persons seeking "exceptional" status. Thus, having exceptional ability is not by itself sufficient to grant the waiver. The petitioner must prove that the benefit his unique skills would provide substantially outweighs the inherent national interest in protecting United States workers through the Labor Certification process.
B. Schedule A
Schedule A is comprised of certain occupations for which the DOL has determined there are not sufficient United States workers who are able, willing, qualified, and available. Schedule A occupations establishes that the employment of aliens in such occupations will not adversely affect the wages and working conditions of United States workers similarly employed.
The occupations listed under Schedule A include: (1) physical therapists; (2) professional nurses; (3) exceptional ability in the sciences or arts; and (4) exceptional ability in the performing arts.