USCIS application procedures:
Permanent Residence through Employment EB-1 EB-2 EB-3
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Employment-Based 1st Preference
The Employment-Based 1st Preference, also known as the priority worker category, is divided into three groups. Preference category EB1(1) is for aliens with extraordinary ability. This is defined as an alien with a level of expertise indicating that the individual is one of that small percentage who has risen to the very top of the field of endeavor. The petition filed on behalf of an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. The regulations set forth the type of documentation that must be submitted as evidence of this achievement.
Neither an offer of employment in the United StatesS nor a labor certification is required for this classification; however, the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise.
Preference category EB1(2) is for those aliens who are outstanding professors and researchers, and who have an offer of employment from a prospective US employer. A labor certification is not required for this classification.
A petition for an outstanding professor or researcher must be accompanied by evidence that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. The regulations set forth what type of evidence must be submitted to meet these criteria.
The EB1(3) category is for certain multinational executives and managers. These are persons who have been admitted to the United States in order to work in, and who are currently working in, managerial or executive positions with the same international corporations or organizations with which they were continuously employed as managers or executives outside the United States for at least one out of the three years before they were admitted; and aliens outside of the United States who will be engaged in the US in managerial or executive positions with the same international corporations or organizations with which they have been continuously employed as managers or executives outside the United States for at least one of the immediately preceding three years. The terms manager and executive are more thoroughly defined in the regulations. It should be noted that these provisions provide for a waiver of the labor certification requirement. In order to qualify for this waiver, the United States business must have been in operation and doing business for at least one year prior to the filing of the waiver application. As stated above, no labor certification is required for this classification; however, the prospective employer in the United States must furnish a job offer in the form of a statement that indicates that the alien is to be employed in the United States in a managerial or executive capacity. Such letter must clearly describe the duties to be performed by the alien.
Employment-based 2nd Preference
The employment-based 2nd preference category is for aliens who are members of the professions holding advanced degrees, or aliens of exceptional ability.
Advanced degree means any US academic or professional degree or a foreign equivalent degree above that of baccalaureate. The United States Baccalaureate degree or a foreign equivalent degree followed by at least five (5) years of progressive experience in a specialty occupation shall be considered the equivalent of a master's degree.
Exceptional ability in the sciences, arts, or business means a level of expertise significantly above that ordinarily encountered in the sciences, arts, or business. Profession means one of the occupations listed in Section 101(a)(32) of the Act, as well as any occupation for which a US baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. The regulations set forth the type of documentation needed to establish that the alien has the requisite degree or that the alien is of exceptional ability in the sciences, arts, or business.
Every petition under this classification must be accompanied by an individual labor certification from the Department of Labor, or the United States Immigration Service may exempt the requirement of a job offer, and thus of a labor certification, for aliens of exceptional ability in the sciences, arts, or business if such an exemption would be in the national interest. To apply for this exemption the alien must submit significant evidence to support the claim that such exemption would be in the national interest.
Employment-based 3rd Preference
The employment-based 3rd preference category is divided into three areas: skilled workers, professionals, and unskilled workers. A "Skilled Worker" means an alien who is capable, at the time of petitioning for the classification, of performing skilled labor (requiring at least two (2) years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States. Relevant post-secondary education may be considered as training for the purposes of this provision.
"Professional" means a qualified alien who holds at least a United States baccalaureate degree or a foreign equivalent degree and who is a member of the profession.
"Other worker" (unskilled) means a qualified alien who is capable, at the time of petitioning for the classification, of performing unskilled labor (requiring less than two (2) years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the US.
Every petition under the employment-based 3rd preference category must be accompanied by an individual labor certification from the Department of Labor.
In addition, the alien must submit documentation to support his or her claim to the education and /or experience requirements of the labor certification.
NOTE: It is extremely important to try to classify the alien as a skilled, versus an unskilled worker. The approval time for a skilled worker application may take only one to two years, while an unskilled worker application may take ten years for ultimate approval, because of the different waiting lists for each category.
In order to qualify for a labor certification, the alien needs a United States employer who is willing to file an application on his or her behalf. The application is filed with the Labor Department in the area where the alien will be employed. The Labor Department regulations are quite lengthy, and often cumbersome. They require that the employer advertise the position sought in a professional journal, or for a period of three (3) consecutive days in a local newspaper of general circulation. In addition, a notice of the job opportunity must be posted at the employer's place of business, and the job must be listed with the appropriate office of the state employment service.
An alternative method of testing the job market is through a process known as Reduction in Recruitment (RIR). Under this procedure, the employer does not wait for recruitment instructions from the Department of Labor but, rather, does its own recruitment prior to the filing of the labor certification application. In many cases, this can result in a significant savings of time from the regular recruitment process.
The purpose of the above recruitment efforts is to establish whether there is any US worker qualified and available for the position, and that the wage being offered the alien is the "prevailing wage" for that type of position in that area of the country. If US workers are qualified and available, or if the offered wage is too low, the United States Department of Labor will not approve the application for a labor certification.
If the application is approved, a labor certification is issued, and the employer may then file a petition with the United States Immigration Service to classify the beneficiary in the appropriate employment category. If the application is denied, the employer may file an appeal to the Board of Alien Labor Certification Appeals in Washington, DC.
Each of the above EB1, EB2, and EB3 petitions must be filed on United States immigration form I-140, Petition for Immigrant Worker. This must be filed with the United States Immigration Service center that has jurisdiction over the area of the alien's intended employment. The documentation required to be submitted with the petition is outlined in the regulations.
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