Immigrant
Visas
There are a
variety of categories of employment-based visas for people with the right
background who want to immigrate.
For most of these
categories, there is a three-step process to obtaining employment-based
permanent residency: (1) applying for and obtaining "labor
certification" from the U.S. Department of Labor, (2) making the visa
petition with the USCIS, and (3) adjusting to permanent resident status through
the USCIS (if in the U.S.) or going through consular processing at a U.S. embassy
or consulate overseas.
Avoiding
Labor Certification
The law provides
for ways to decrease, and even avoid, the first step of labor
certification. Because this step may be the most burdensome of the three
steps, many people try to find a way to use one or more of these avoidance
measures.
One category
of immigrant employment visa is not even subject the requirement at all -- the
category targeted to "priority workers." This category is for
aliens of "extraordinary ability," "outstanding professors and
researchers" who have at least three years full-time teaching experience
and a full-time tenure track offer in the United States, and certain executives
and managers of multinational corporations.
Even though they
do not fall in to the priority worker category, certain other professions are
also automatically exempt labor certification -- nurses, physical therapists and
aliens possessing "exceptional ability in the arts or sciences."
These professions are exempt due to the current shortage of such workers in the
United States.
Another way of
avoiding labor certification is seeking a "national interest waiver"
by proving that the worker's continued employment in the United States is in the
country's "national interest." This proof is made by showing
that the worker benefits the economy, national health care system, educational
system, or other high-priority federal interest.
College and
university professors and aliens possessing "exceptional ability in the
performing arts" are eligible for a reduced form of labor certification
called "Special Handling."
Labor
Certification
If the worker
does not fit into any of the categories described above, he or she must obtain
labor certification before applying for a green card from the USCIS. The employer
must prove that there are no American workers qualified or available to do the
job. To make this proof, the employer must advertise the position, list the
position with the local Labor Department job bank, and post a notice disclosing
the position, title, and salary to other employees or unions at the work place.
The employer must also pay a salary that the Labor Department deems comparable
to the average wage paid for this type of position in your area. This is a
lengthy process, and can take over a year, as the local, state and federal Labor
Department offices individually review the recruitment efforts.
The
Visa Petition
The next step
involves the employer filing a petition on the worker's behalf with an USCIS regional service center, using Form I-140.
The visa
petition seeks classification in one of the employment-based ("EB")
categories.
On this form, the
employer must describe the business, the position, and the worker's
qualifications. Depending upon which classification is received, a visa may be
immediately available, or there may be a delay of several years. These delays
are caused by quotas assigned to the various visa classifications and countries
of origin.
The
"EB-1" category is for the priority workers described above -- aliens
of "extraordinary ability," "outstanding professors and
researchers" who have at least three years full-time teaching experience
and a full-time tenure track offer in the United States, and certain executives
and managers of multinational corporations.
The
"EB-2" category is for advanced degree holders, meaning that the
worker must hold either a Bachelor's degree and at least five years of
progressive experience or an advanced degree, and will be employed in a
professional job.
The
"EB-3" category is for skilled workers, professionals, and other
workers. Skilled workers are defined as those with at least two years' training
or experience, including aliens holding two-year Associate's degrees. A
professional is defined as someone holding a B.A. degree or its foreign
equivalent.
The Other Worker
sub-category of the EB-3 classification encompasses unskilled workers, and is
subject to a six-year backlog worldwide.
The current USCIS
processing time for I-140s is about two months, but varies depending on time of
year and where filed. The worker's spouse and/or children may obtain green
cards as your dependents.
Adjustment
and Consular Processing
After the 1-140
is approved, the worker may complete the third step of the process -- either
adjustment to permanent resident status or consular processing.
If the worker is
in the United States, he or she would seek the "Adjustment" method.
This is done by filing Form I-485, which asks for biographical, health, and
other personal information, with the local USCIS office. An interview with a
USCIS officer is usually required, as well.
If the worker is
in the home country, he or she would seek "consular processing" to
obtain the immigrant visa via the U.S. consulate in the country. Although
the purpose, and information sought, is very similar to in the Adjustment
process, there are some formal differences. This is because U.S. consular
offices are under State Department jurisdiction, not the USCIS.
FOR MORE
INFORMATION:
Contact John
Byrley at tel: 410-719-1501.
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