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The I-140 Immigrant petition is the standard U.S. Bureau of Citizenship and Immigration Services (BCIS) form used to file for an employment-based visa, or Green Card.
Most I-140 Immigrant Petitions require as a prerequisite that the applicant have a job offer in the United States. In addition, the applicant must generally apply for "Labor Certification" of the offer of employment through the State Employment Security Agency (state divisions of the federal Department of Labor) which is a lengthy and onerous process.
There are many employment-based immigrant visa categories which are organized along five lines of "preference", each of which are briefly outlined below. The Immigration Act of 1990 increased the total number of employment-based visas per year from 54,000 to approximately 120,000 in these categories.
The first preference visa category (EB-1) allocates 28.6 percent of the total number of employment-based immigrant visas per year to priority workers in three sub-categories:
- Aliens with extraordinary ability;
- Outstanding professors and researchers;
- Certain multi-national executives and managers;
Aliens with extraordinary ability are defined by statute as those who can show that they have "extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation." Generally, BCIS regulations require that the EB-1 applicant be one of that small percentage who have risen to the very top of their field of endeavor. It is a difficult though not impossible threshold to meet.
The advantage of applying for permanent residence under this EB-1 sub-category is that neither a job offer nor a labor certification is required. Labor certification in most states usually takes between twelve (12) and eighteen (18) months to complete so the time savings realized in applying under the first preference EB-1 category is significant.
Outstanding professors and researchers are defined as those who are internationally recognized as outstanding in a specific academic area; have a minimum of three (3) years of experience in teaching or researching in that area; and who are entering the United States in a tenure or tenure track teaching or comparable research position at a university or other institution of higher education.
The research positions in this EB-1 sub-category must be permanent or of a fixed indefinite duration in order to qualify. In this case, an offer of employment is required although labor certification of the offer of employment is not.
The standard of international recognition may be demonstrated through evidence of awards or major prizes, membership in associations which require outstanding performance, evidence that the applicant has sat in judgement of others, and authorship of scholarly books and journals.
Certain multi-national executives and managers may qualify for EB-1 status thereby avoiding the Labor Certification requirement. Generally, if an applicant has held L-1A Managerial or Executive intra-company non-immigrant status, the EB-1 standard would be met and the petition approved. The applicant must have been employed outside the U.S. in a managerial or executive capacity for at least one (1) of the three (3) years petition, or in the case of an alien in the U.S., one (1) of the three (3) years preceding his or her entry as a non-immigrant. The employment outside U.S. must have been with a subsidiary or affiliate company as defined by regulation.
Processing times for the three EB-1 categories range from seven (7) to twelve (12) months at most United States Consulates and BCIS offices.
28.6 percent of the total number of employment-based immigrant visas per year are allocated by statute to Second Preference workers in two sub-categories:
- Aliens who are members of the professions holding advanced degrees or their equivalent;
- Aliens who, because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interest or welfare of the United States.Aliens who are members of the professions holding advanced degrees or their equivalent generally require an offer of employment from a prospective U.S. employer and an advanced degree in a field related to the offer of employment. "Advanced degrees" are defined as any degree beyond the baccalaureate (bachelors). Master's degrees will be the typical degree requirement in this category. "Professions" are defined as any occupation for which a baccalaureate degree or foreign equivalent in the minimum requirement for entry.
It is important to note that applicants who possess extensive work experience, but no advanced degree may qualify for EB-2 status. The BCIS may deem one holding a bachelor's degree with five (5) years of work experience to hold the equivalent of a Master's degree.
Aliens of exceptional ability in the sciences, arts or business may qualify for EB-2 status if that person can demonstrate a degree of expertise significantly above the ordinary as shown by evidence of education, experience, licensure, high salary, membership in key associations, recognition by peers, etcetera.
Labor Certification is generally required for both EB-2 sub-categories unless the applicant is a registered nurse or physical therapist, in which case they are exempt from labor certification under Schedule A - Group I of the legislation.
Aliens may also seek exemption from the labor certification requirement by applying for a National Interest Waiver of the job offer and labor certification requirement. National Interest Waivers are difficult to achieve, but may be sought if the applicant's admission to the United States would be deemed to be in that country's national interest. The BCIS will consider evidence regarding the alien's potential ability to improve the U.S. economy, improve wages and working conditions, improve education of U.S. children, improve U.S. healthcare, provide more affordable housing, or improve the environment.
Processing times vary considerably for EB-2 cases depending upon whether labor certification is required. In the event labor certification is required, processing time ranges between fifteen (15) and twenty-four (24). The applicant's "foreign state of chargeability" or birth country also has considerable impact on processing times as certain employment-based immigrant visas are allocated by the U.S. Department of State on a per country quota basis.
The 1990 Immigration Act allocated 28.6 percent of employment-based visas to third preference workers in the following sub-categories:
- Skilled workers with two (2) years of experience;
- Professionals holding baccalaureate degree;
- Other workers
Labor Certification of the U.S. offer of employment is required for EB-3 preference workers. The Labor certification process is difficult and requires careful attention to detail in the job description and employer experience requirements of the application materials. In most cases, the State Employment Security Agency (SESA) will require that the employer publish an advertisement for the position offered in a newspaper or relevant trade journal. Careful documentation of the recruitment results must be provided to the SESA prior to certification (approval) of the application. Once SESA and the Regional Office of the Department of Labor have certified the application for labor certification, the I-140 Immigrant Petition is filed with the BCIS Regional Service Center.
Ten-thousand (10,000) visas per year may be issued to certain special immigrants, including religious workers, under the EB-4 employment-based visa category.
The 1990 Immigration Act defines special immigrants as including, "ministers of religion; professionals working in religious vocations or occupations; and other workers in religious vocations or occupations who work for non-profit U.S. religious organizations.
Aliens contemplating application under this category must have at least two (2) years of documented membership in a religious denomination abroad or in the U.S. prior to application. The religious worker must be coming to the United States solely for the purpose of acting as a minister, working in a professional religious capacity, or working for a non-profit religious organization.
A yearly maximum of ten-thousand (10,000) visas per year may be issued to visa applicants with $1 million to invest in a new commercial enterprise employing at least ten (10) full-time U.S. workers.
The new enterprise must have been established by the applicant and be one in which the applicant has or is in the process of investing $1 million, and be one which will benefit the U.S. economy and create full-time employment for ten (10) U.S. workers (not including the immigrant or family members). If approved, a two (2) year condition is imposed on the immigrant visa to ensure that the applicant has complied with the stated requirements.
One exception to the strict $1 million investment threshold provides that $500,000 may be invested by an applicant in a "target area" which are generally defined as census rural areas. Various EB-5 programs exist which lower one's minimum required initial investment deposit to $150,000.00 (USD). Please consult our on-line consultation page to determine your eligibility for this type of Green Card case.
Understandably, the EB-5 investor category is one of the most difficult visa applications to process. Processing times are favorable as labor certification is not required.
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