Employment-based Immigration

Admitting foreign workers with skills that are valuable to the U.S. economy is one of the principles guiding the U.S. immigration system. Current U.S. immigration law provides several paths for foreign workers to enter the United States for employment purposes on a temporary or permanent basis.

Permanent employment-based immigration occurs through five (5) numerically limited preference categories. The top three (3) of which are ranked by professional accomplishment and ability. The fourth (4th) preference category includes various “special immigrants,” and the fifth (5th) preference category includes immigrant investors, a category created in 1990 to benefit the U.S. economy through employment creation and capital investment.

Employment-based immigrants, which include accompanying spouses and children of qualifying Lawful Permanent Residents (LPRs), are limited to 140,000 total annual admissions, and are subject to the same 7% per-country limit as family-sponsored preference immigrants.

Employment-based immigrant visas are issued to eligible immigrants in the order in which petitions have been filed under that specific preference category for that specific country. When visa demand exceeds the per-country limit, visas are prorated according to the preference system allocations for the oversubscribed foreign state or dependent area.

The Immigration and Nationality Act (INA) bars the admission of any foreign national who seeks to enter as a second (2nd) or third (3rd) preference LPR to perform skilled or unskilled labor, unless it is determined that (1) there are not sufficient U.S. workers who are able, willing, qualified, and available; and (2) the employment of the foreign national will not adversely affect the wages and working conditions of similarly employed workers in the United States. The foreign labor certification program in the U.S. Department of Labor (DOL) is responsible for ensuring that foreign workers do not displace or adversely affect wages or working conditions of U.S. workers. Therefore, employers applying for foreign workers under the second (2nd) and third (3rd) preference categories must first obtain a foreign labor certification from the DOL utilizing its Program Electronic Review Management (PERM) program before filing a visa petition with USCIS.

For reference, we have included below the preference classes for allotment of Employment-based immigrant visas as prescribed by Section 203(b) of the INA:

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth (4th) and fifth (5th) preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first (1st) preference.

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first (1st) and second (2nd) preferences, not more than 10,000 of which to “Other Workers”.

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

There are many different temporary employment-based visa classifications. Most of the classifications are defined in section 101(a)(15) of the Immigration and Nationality Act (INA). Temporary employment-based visa classifications permit employers to hire and petition for foreign nationals for specific jobs for limited periods. Some of the temporary employment-based visa classifications include: H-1B for professional workers; L-1A or L-1B for intracompany transferees with specialized knowledge or in management/executive positions that have worked abroad for an affiliated company and are being transferred to the U.S; E-1 or E-2 for immigrant trader/investors from countries with economic treaties with the U.S., etc.