The Immigration and Nationality Act (INA) allows for permanent residence (“green card”) for foreign individuals based on employment related criteria.
Generally, the first step in obtaining permanent residence (“green card”) on behalf of a foreign individual is labor certification. Labor certification is the process of proving that there are no qualified U.S. workers for the position being offered to the foreign individual. If the labor certification application is certified by the Department of Labor (DOL), then the U.S. employer must file an Immigrant Petition in order to obtain an immigrant visa (“green card”) for the foreign individual. In certain employment based (EB) immigrant visa categories, however, labor certification is not required. The Immigrant Petition can be filed by the U.S. employer or the foreign individual can file without an employer sponsor.
Employment Based Preference Categories
The Immigration and Nationality Act (INA) limits the number of employment based immigrant visas that are issued each year based on the EB preference category. Each preference category is assigned a number of immigrant visas. In addition, there is a limit to the percentage of immigrant visas that can be allotted to each country in a year. Typically, since the demand for immigrant visas is higher than the limited number and greater for some countries, an immigrant visa ‘waiting list’ forms. The foreign individual’s place on the ‘waiting list’ is determined by their ‘priority date’. As such, the foreign individual’s ‘priority date’ and country of origin will determine the time the case will remain at the NVC until an immigrant visa number becomes available.
The following is a list of all employment based preference categories.
First Employment Based Preference Category (EB-1)
Aliens with extraordinary ability in sciences, art, education, business or athletics or outstanding professors or researchers or a multinational executives or managers
Second Employment Based Preference Category (EB-2)
Members of the professions holding an advanced degree or having exceptional ability
Third Employment Based Preference Category (EB-3)
Professionals, skilled workers or other workers
Fourth Employment Based Preference Category (EB-4)
Fifth Employment Based Preference Category (EB-5)
Employer Creation (Investors)
Immigrant Visa Availability Criteria
As stated, the INA limits the number of employment based immigrant visas (based on certain criteria) that are issued per year. Since the demand for immigrant visas is higher than the limited number, an immigrant visa ‘wait list’ forms. This means that even if the USCIS approves a petition the foreign individual will not get an immigrant visa immediately.
The following criteria determine how quickly the foreign individual will be issued an immigrant visa.
Each employment preference category is assigned a limited number of immigrant visas per year. If the foreign individual falls into a category with a greater number of immigrant visas then the wait time will be shorter.
Each country is assigned a limited number of immigrant visas per year. If the foreign individual is from a country with a lower demand for immigrant visas then the wait time will be shorter.
The ‘priority date’ is the date that the labor certification application is filed with the DOL or the individual petition is properly filed with the USCIS (depending on the category). The ‘priority date’ is used to determine the foreign individual’s place on the immigrant visa ‘wait list’.
Foreign Individual ’s Place on the ‘Wait List’
The Department of State (DOS) distributes immigrant visas based upon employment preference category, country and ‘priority date’. The DOS publishes a monthly report of immigrant visa availability referred to as the “Visa Bulletin”. Specifically, the Visa Bulletin allows the foreign individual to verify their place on the ‘wait list’.
In order to verify their place on the ‘wait list’ the foreign individual can review the Visa Bulletin online. The Visa Bulletin contains a chart that should be reviewed using the following.
- Locate the proper employment sponsored preference category
- Locate the proper country of birth
- Review the ‘cut-off’ date
An immigrant visa is available to the foreign individual only if their ‘priority date’ is earlier than the ‘cut-off’ date indicated in the Visa Bulletin chart.
If this is the case, then the processing of the foreign individual ’s immigrant visa will continue. Specifically, the National Visa Center (NVC) will perform a background check of the foreign individual, collect immigrant visa fee and documents, process the immigrant visa application and provide instruction regarding the interview and the required medical examination. After processing is complete, the NVC will schedule an interview and forward the individual petition, immigrant visa application and documents to the United States embassy or consulate nearest the foreign individual’s residence.
If you are unfamiliar with what is required, you may wish to take a moment to learn more about the employment (immigrant) visa process, to review the requirements for the employment (immigrant) visa, the associated immigrant visa fees and the timelines for the employment (immigrant) visa process.