EMPLOYMENT-BASED IMMIGRATION
MAJOR changes were enacted by Congress in the 1990 Act whereby effective October 1, 1991, the previous Third and Sixth Preference employment related visas were eliminated and 140,000 visas would be allocated according to a new employment-based preference (EBP) system. Such system was established in the belief that the U.S. economy would benefit from increased immigration of skilled workers and 140,000 employment-based visas per year would eliminate the waiting period to receive a visa. Previously, only 54,000 visas per year were available for employment-based visas and most of such visas required labor certification. Effective October 1, 1991, five new categories of employment-based preference visas were established as follows:
I. EMPLOYMENT-BASED PREFERENCE #1: PRIORITY WORKERS
A Priority Worker Visa can be any one of 3 subgroups that provide 28.6% (about 40,000) immigrant visas per year and where no labor certification is required.
(A) Aliens with Extraordinary Ability in the Arts, Sciences, Education, Business, or Athletics.The ability must be demonstrated by national or international recognition or extensive documentation. Such aliens can sponsor themselves. They must come to the U.S. to work in the area of their ability and their work must benefit the U.S.
(B) Outstanding Professors and Researchers. Such aliens must be internationally recognized in a specific area, have at least 3 years of experience in teaching or research, and be offered a permanent teaching or research position. If the employer is a private company, researchers must work for an employer that employs at least 3 persons in research.
(C) Multinational Executives and Managers. If an alien has been employed by the foreign company for at least 1 of the last 3 years and such alien will be transferred to the U.S. in a managerial or executive position (which is a definitive and complicated definition), in such circumstances the same company can file on behalf of the alien. Presumably any alien who qualified for the L-1 visa based upon managerial or executive duties could qualify.
II. EMPLOYMENT-BASED PREFERENCE #2: PROFESSIONALS HOLDING ADVANCED DEGREES OR ALIENS OF EXCEPTIONAL ABILITY IN ARTS, SCIENCES OR BUSINESS
28.6% (about 40,000) immigrant visas per year plus any unused visas from EBP #1 above are allocated for such aliens. A professional with a bachelor's degree and 5 years of experience would also meet the requirements of an advanced degree. A person of “exceptional ability” under strict standards defined by the USCIS can also qualify. Persons under either category must be sponsored by an employer and must have an approved labor certification. Persons of exceptional ability must illustrate they will benefit the economy, the cultural or educational interests, or the welfare of the U.S.
III. EMPLOYMENT-BASED PREFERENCE #3: BASIC PROFESSIONALS, SKILLED WORKERS, AND UNSKILLED WORKERS
28.6% (about 40,000) immigrant visas plus any unused visas from EBP #1 and #2 above are allocated for:
(i) Professionals – members of the professions who hold bachelor's degrees.
(ii) Skilled workers in short supply – with 2 years of training or experience.
(iii) Other workers including unskilled workers – no more than 10,000 visas per year can be issued for unskilled workers. Any qualifying alien must be coming to the U.S. to perform unskilled labor for which qualified workers are not available.
IV. EMPLOYMENT-BASED PREFERENCE #4: SPECIAL IMMIGRANTS
7.1% (about 10,000) immigrant visas per year can be granted to:
* Ministers of religion with 2 years of experience
* Religious workers who are not ministers
* Certain U.S. mission employees in Hong Kong
* Certain international organization aliens
V. EMPLOYMENT-BASED PREFERENCE #5: INVESTORS
7.1% (about 10,000) immigrant visas per year can be given to any investor (and family) from any country who:
* Has engaged in or established new commercial enterprise after November 29, 1990; and
* Has invested or is in the process of investing $1 million in a standard metropolitan statistical area (SMSA) 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; and
* Creates at least 10 full time jobs not including the alien or his or her family members; and
* Creates a commercial enterprise that will benefit the U.S. economy.
3,000 of the 10,000 visas are reserved for those investors who apply under a pilot program involving a “Regional Center.”
The Investor immigrant will be granted conditional permanent residence that can be converted to permanent residence or “green card” after 2 years when such investor files another petition with the USCIS illustrating:
* A commercial enterprise was established by the alien; and
* The alien invested the requisite capital; and
* 10 employees were hired, the investment was funded, and the business is viable.