This informational note provides a basic summary of the various categories for employment sponsorship. The law provides strict, and relatively inflexible, guidelines as to the specific requirements necessary for an offer of employment to fall within each of the categories.
The alien worker must also meet certain specific eligibility criteria to qualify for inclusion in a particular category. A set number of immigrant visas are allocated to aliens in each of the first three preference categories set forth below.
FIRST PREFERENCE
CATEGORY
(Priority Workers)
***** No Labor Certification Required *****
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Outstanding professors and researchers
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Individuals of "extraordinary ability": applies to that very small percentage of persons who are at the very top of a particular field of endeavor (for example, having received major, internationally recognized awards or other form of recognition for work or artistry in a particular discipline).
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Certain multinational executives and managers: While this type of visa application does not require a labor certification or specific educational credentials, it is required that the alien worker permanently worked with a U.S. businesses' parent company, subsidiary, affiliate or home office abroad for at least one year within the preceding three years as a senior executive or manager.
SECOND PREFERENCE
CATEGORY
(Exceptional Ability Aliens and Advance Degree Professionals)
Labor Certification or National Interest Waiver Required
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Individuals with "exceptional ability" in the sciences, arts or business. Requires that the alien worker have a degree of expertise above that normally encountered in his or her field. "Exceptional ability" can be shown by demonstrating (documenting) at least three (3) of the following:
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An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of ability.
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Evidence in the form of letters from current or former employers showing that the alien has at least ten (10) years of full-time experience in the occupation for which he or she is being sought.
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A license to practice the profession or certification for particular profession or occupation.
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Evidence that the alien worker has commanded a salary, or other remuneration for services, which demonstrates exceptional ability or demand for his or her services.
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Evidence of membership in professional associations.
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Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
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Professionals holding advanced degrees: For this category, an advanced educational degree is required. In some cases, a U.S. bachelors degree, or its equivalent, plus five (5) years of progressive work experience in the field may suffice as a substitute for an advanced educational degree.
NATIONAL INTEREST WAIVERS OF LABOR CERTIFICATION REQUIREMENT
In some limited cases, the job offer requirement, and therefore the Labor Certification, can be waived if such waiver is in the "national interest" of the United States. A national interest waiver must be considered on the facts of each individual case. Usually, the following general factors may be considered in determining if the alien worker will be working in the "national interest" of the United States (other factors may also be considered):
a) improves the U.S. economy or improve working conditions and wages of U.S. workers
b) improves education or training programs for U.S. children or under qualified U.S. workers
c) improves health care or provides more affordable housing for young, aged or poor U.S. residents
d) improves U.S. environment or makes more productive use of natural resources in the U.S.
e) is involved in a request from an interested U.S. government agency
THIRD PREFERENCE
CATEGORY
(Professionals, Skilled Workers and Unskilled Workers)
Labor Certification Required
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Professionals holding a least a bachelors degree (or its equivalent)
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Skilled workers with at least two (2) years of training or experience
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Unskilled workers with less than two (2) years of training (special restrictions and limitations apply)
FOURTH PREFERENCE
CATEGORY
(Special Immigrants)
No Labor Certification Required
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Religious Workers
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Aliens who will work as ministers
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Aliens who will work for a religious organization in a professional capacity
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Aliens who will work for a bona fide religious organization in a vocation or occupation
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Other "special immigrants" as defined in the INA: (consult your attorney for details)
FIFTH PREFERENCE
CATEGORY
(Immigrant Investors)
No Labor Certification Required
Investors in "new" commercial enterprises
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Based upon a direct investment in the U.S. economy of $1,000,000.00, or $500,000.00 if invested in a targeted economic zone or area.
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Must create at least ten (10) full-time jobs for U.S. citizens or legal permanent residents (five full-time jobs in targeted areas where a $500,000.00 investment is considered sufficient)
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"New" commercial enterprise includes the creation of an original business entity or the purchase, restructuring or reorganization of an existing business or the expansion of an existing business if it results in a minimum 40 % increase.
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Must invest with lawfully acquired money, but not necessarily money from abroad.
