QUICK REFERENCE TO EMPLOYMENT-BASED PERMANENT RESIDENCE
by: Gary Chodorow
revised: Mar. 29, 2003

This article briefly describes each employment-based permanent residence category under U.S. immigration law.

EMPLOYMENT-BASED FIRST PREFERENCE

Persons with Extraordinary Ability: For persons with extraordinary ability in the sciences, arts, education, business, or athletics. They must have risen to become one of the few persons at the very top of their field. They must have received sustained national or international acclaim and must extensively document their acclaim.

Outstanding Researchers and Professors: For persons who (1) have been recognized internationally as outstanding in their academic field; (2) have at least 3 years of teaching or research experience in the field; and (3) have been offered a tenure-track academic position or permanent research position.

Multinational Managers and Executives: For persons who for at least 1 of the preceding 3 years were employed by the overseas affiliate, parent, subsidiary, or branch of a U.S. employer and who are coming to the U.S. to work in a managerial or executive capacity for that employer. The U.S. employer must have been doing business in this country for at least 1 year.

EMPLOYMENT-BASED SECOND PREFERENCE

Second preference covers two groups of people:

• Advanced Degree Professionals: The position offered must require an advanced degree, meaning a degree above a bachelor's or, in the alternative, the position may require a bachelor's degree and 5 years of progressive experience in the specialty.
   
• Persons of Exceptional Ability in the Sciences, Arts, or Business: Exceptional ability means "a degree of expertise significantly above hat ordinarily encountered." Not only must the person have this level of ability, but also the position offered (except in national interest waiver cases) must require this level of ability. The person's immigration must "substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the U.S."

To be classified in second preference, a person must use one of the following procedures:

• Labor Certification: See "Note on Labor Certification" below.
   

• National Interest Waiver: The labor certification requirement may be waived if: (1) the person is seeking employment in an area of "substantial intrinsic merit"; (2) the proposed benefit is national in scope; and (3) the person will benefit the U.S. to such a great extent that no labor certification should be required to test the availability of U.S. workers for the job. This last point can be restated as the requirement that the person will serve the national interest to a substantially higher degree than would an available U.S. worker with the same minimum qualifications because the person has achievements showing more than exceptional ability.
   

• Physician National Interest Waiver: The labor certification requirement will be waived for a physician who agrees to work full-time for an aggregate of five years in an area designated by the Department of Health and Human Services as having a shortage of doctors or at a VA health facility. Unless the physician works at the VA, the physician must practice family or general medicine, pediatrics, general internal medicine, OB/GYN, or psychiatry. A federal agency or state health department must determine that the physician's work is in the public interest.
   

EMPLOYMENT-BASED THIRD PREFERENCE

The third preference covers the following types of persons with approved labor certifications:

• Professionals: Members of a profession (i.e., occupations normally requiring at least a bachelor's degree in a particular specialty) who hold an appropriate degree.
   

• Skilled Workers: Persons with 2 or more years experience or training who have been offered a position requiring such qualifications.
   

• Other workers: Persons qualified to perform "unskilled labor," defined by the Department of Labor as work that takes less than 2 years training or experience to be qualified.

NOTE ON LABOR CERTIFICATION

Labor certification is required in all third preference cases and some second preference cases. Through labor certification, the Department of Labor verifies that an employer has made good faith efforts to recruit a U.S. worker qualified to fill the position offered to the foreign national but has been unsuccessful in doing so. There are several types of labor certification:

Regular Labor Certification: Here, the state workforce agency (SWA) supervises recruitment by telling the employer where to place the ads. The ads ask applicants to submit their resumes to the SWA, which then forwards the resumes to the employer to interview the applicants. The employer must show that no qualified and interested U.S. worker has been found.

Reduction in Recruitment: Here, the employer conducts a pattern of recruitment on its own within the 6 months preceding the filing of the labor certification application and then submits a report to the SWA. The Department of Labor has instructed SWAs to expedite review of such cases. The employer must show that insufficient qualified and interested U.S. workers have ben found to fill their vacancies.

Special Handling for College Teachers: The college must show that the foreign national is better qualified than interested U.S. applicants. The college must place one national ad and use a systematic approach to screen applicants.

Special Handling for Performing Artists: For performing artists with exceptional ability demonstrated within the prior 12 months who have been offered positions requiring exceptional ability. The employer must place at least one ad in a national publication and show that the foreign national is more qualified than any U.S. applicants.

Schedule A, Group I: Physical therapists and professional nurses are in such short supply that no application for labor certification needs to be filed with the Department of Labor. Instead, the application is filed directly with BCIS.

Schedule A, Group II: Persons (except for performing artists) of exceptional ability in the sciences or arts including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the U.S. Must submit documentary evidence testifying to the widespread acclaim and international recognition accorded the alien by recognized experts in their field; and documentation showing that the alien's work in that field during the past year did, and the alien's intended work in the United States will, require exceptional ability. No labor certification needs to be filed with the Department of Labor. Instead, the application is filed directly with BCIS.

Schedule B: These are occupations for which a labor certification will not be approved without a special waiver. These are largely unskilled jobs requiring little or no education or experience, often characterized by low wages, irregular working hours, poor working conditions, and high turnover.

EMPLOYMENT-BASED FOURTH PREFERENCE: SPECIAL IMMIGRANTS

Religious Workers: Persons seeking to enter the U.S. as ministers, to work for a religious organization in a professional capacity (before Oct. 1, 2003), or to work for a religious organization in a religious organization or occupation (before Oct. 1, 2003). Such persons must:

• Be members of a religious denomination having a bona fide nonprofit, religious organization in the U.S. for at least two years immediately preceding the time of application for admission; and
   
• Have carried on a religious vocation, professional work, or other work continuously for at least that two-year period.

Certain U.S. Government Employees: An employee, or an honorably retired former employee, of the U.S. government abroad who has served faithfully for at least 15 years, may enter the U.S. as a special immigrant, together with their spouse and children, if the principal officer of a Foreign Service establishment recommends granting such special immigrant status in exceptional circumstances and the Secretary of State approves, finding it in the national interest.

Natives of Western Hemisphere Countries: Until Jan. 1, 1977, natives of Western Hemisphere countries were considered special immigrants. Today, the relevance of this prior law is that a person who is a native of the Western Hemisphere who established a priority date prior to Jan. 1, 1977 as the parent, spouse, or child of a U.S. citizen or lawful permanent resident retains the priority date, for so long as the relationship upon which the exemption is based continues to exist. Moreover, such a person's children and spouse (if the marriage existed before the person immigrated) are entitled to the same status and priority date. Finally, that priority date may be used for purposes of any preference petition subsequently approved on their behalf. This is a powerful way to avoid immigrant visa waiting lists.

Special Immigrant Juveniles: Children declared dependent on a juvenile court located in the U.S. due to abuse, neglect, or abandonment and either eligible for long-term foster care or under the custody of a state agency or department. A determination must have been made in administrative or judicial proceedings that it would not be in the child's best interest to be returned to their country of nationality or last residence. BCIS must consent to the dependency order.

Certain Members of the U.S. Armed Forces: Such persons must have enlisted outside the U.S., served after Oct. 15, 1978, served for at least 6 years, and be nationals of the Philippines, Micronesia, or the Marshal Islands.

Victims of the September 11, 2001 Terrorist Attack: An alien is entitled to classification as an ‘‘SP’’ special immigrant if the alien can demonstrate to that he or she is the beneficiary of an immigrant petition petition or K petition or labor certification application, filed on or before Sep. 11, 2001, and the alien shows that the petition or application wasrevoked, terminated or rendered null, either before or after its approval, due directly to the attack of September 11, 2001, that resulted in the death or disability of the petitioner, beneficiary, or applicant; or caused loss of employment due to
physical damage to, or destruction of, the business of the petitioner or the applicant.

Certain Current or Retired G-4 (International Organization Representatives) and NATO Nonimmigrants and Family Members

Certain Physicians Licensed to Practice in the U.S. on Jan. 9, 1978

EMPLOYMENT-BASED FIFTH PREFERENCE: IMMIGRANT INVESTORS

For persons seeking to enter the U.S. to engage in a commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs. The jobs must be for U.S. citizens, lawful permanent residents, or others authorized to work in the U.S. (other than the immigrant and their immediate family). The applicant must have invested or be in the process of investing $1 million or, if the investment is made in a "targeted area," $500,000. In either case, before the second anniversary of obtaining lawful permanent resident status, the applicant must establish that they have substantially maintained the investment.