Employment-Based Immigrant Visas

Permanent residence status, symbolized to many people as the “green card”, confers upon foreign nationals the right to live and work in the United States without time limitations.

The two most common ways of becoming a permanent resident are:

1. Through close family ties to a U.S. citizen or permanent resident, or
2. Through employment in the United States.

For purposes of employment, an employer files Form 750 A&B, Application for Alien Employment Certification, with the local Department of Labor in their jurisdiction. This Department then routes the documents to the regional Department of Labor in their jurisdiction for certification. Once certified, it is attached to Form I-140, Immigrant Petition for Alien Worker. The approved I-140 classifies the alien as a qualified immigrant.

Please note: This is not the final step to permanent resident status. However, it is a necessary preliminary step. Once the alien is found qualified within one of the groups Congress has given preference for immigration (discussed below) he or she can apply for permanent resident status one of two ways:

1. Through a U.S. consulate or,
2. If in the U.S., through application on Form I-485, Application to Adjust Status to Permanent Resident by filing with the INS.

The three employment-based preference categories are as follows:

1. FIRST Employment-Based Preference
   
   
   • Managers and executives subject to international transfer to the United States (no labor certification required).
   • Outstanding professors and researchers with Universities or private employers that have established research departments (no labor certification required).
   • Aliens of “extraordinary ability” in the sciences, arts, education, business and athletics (no labor certification required and no offer of employment required).
     
     Extraordinary ability/outstanding researcher – Documents requested
     
     
     • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavo
     • Membership in associations where membership is granted in recognition of outstanding achievement
     • Published material about the alien in professional or major trade publications as relating to the alien’s work in the field under which the claim is made to extraordinary ability
     • Participation as a judge of the work or other professional colleagues
     • Original scientific or scholarly contributions of “major significance” in the field
     • Authorship of scholarly articles in the field
     • Display of the alien’s work in artistic exhibitions or showcases
     • Performance in a leading or critical role for organizations or establishments of distinguished reputation
     • High salary or high remuneration in relation to others in the field
     • Demonstration of commercial success in the performing arts
     • Recommendation letters from experts in the field
     • In the alternative, “extraordinary ability” can be established merely through the receipt of a one-time achievement, such as an award of national/international stature.
   
   
   
2. SECOND Employment-Based Preference
   
   
   • Aliens of “exceptional ability” in the sciences, arts or business
   • Advanced-degree professionals
   
   
   A labor certification is required, and a job offer is also required, unless it is waived in the area of national interest.
   
   
3. THIRD Employment-Based Preference
   
   
   • Professionals with a Bachelor’s degree not qualifying in the second preference
   • Skilled workers (filling positions requiring at least two years of training and experience)
   • Unskilled workers
   
   
   Labor certification and an offer of employment are required.

National Interest Waivers

A National Interest Waiver (“NIW”) eliminates the need to obtain labor certification. Successful applicants are exempted from the statutory requirement for employment-based applicants to obtain a certification from the Department of Labor regarding the absence of available U.S. workers eligible to perform the specified employment.

The national interest wavier falls under the employment-based second preference category. An NIW applicant must qualify as either an advanced degree professional or an alien of exceptional ability to establish the national interest standard.

In 1998, the INS designated the decision of Matter of New York Dept. of Transportation (NYSDOT) as a precedent decision. This case establishes a three-prong test for assessing NIW eligibility:

1. First, it must be shown that the alien seeking employment in an area of substantial intrinsic merit. A petitioner cannot establish qualification for an NIW based solely on the importance of the alien’s occupation. It is the position of the Service to grant NIW’s on a case-by-case basis rather than establish blanket waivers for entire fields of specialization.
2. Next, it must be shown that the proposed benefit will be national in scope.
3. The final threshold is therefore specific to the alien. The petitioner seeking the waiver must persuasively demonstrate that the national interest adversely affected if a labor certification were required for the alien. An alien seeking an exemption from this process must present a national benefit so great as to outweigh the national interest so inherent in the labor certification process.


In other words, the alien must demonstrate that they will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Documents to support this request are:

1. Evidence of national/international acclaim of continuing research in the field which can be in the form of letters from noted professors in the field, publications in newspapers and/or journals
2. Media recognition
3. Evidence of graduation in field of study
4. Reports in professional journals regarding the research
5. Recipient of any grants of research study

Reduction in Recruitment

If applying for labor certification through either the second or third employment-based categories, a recruitment campaign is completed during the processing of the application. This ensures that no U.S. workers are available to perform the position as described in the labor certification.

The recruitment campaign consists of three steps performed concurrently:

• An advertisement in a publication of national circulation unique to the profession,
• An internal job posting at the work site and;
• A job order placed in the state job bank.

The recruitment campaign continues for a period of 30 days from the date of the advertisement.

However, the Department of Labor has implemented a program entitled “Reduction in Recruitment” which has proven to be very effective for many cases. This program essentially eliminates the need for the recruitment campaign by allowing the employer to provide evidence to the Department of Labor of their progressive recruitment efforts within the previous six (6) months for the position described. The advantages to this program are simple: reduction of processing time and elimination of additional advertising expense.

85% to 90% of our labor certification cases are processed utilizing Reduction in Recruitment. Listed below is an eligibility list of recruitment sources. Any four (4) or more of the following efforts would apply.

1. Internal job postings detailing dates posted and results
2. Human Resource database (i.e., Resumix)
3. Advertisements in newspapers/professional publications
4. Arrangements with professional recruiters
5. Website/Internet advertising
6. On campus recruitment
7. Internal referral incentive programs
8. Technical open houses sponsored by company
9. Job fairs attended
10. Radio advertisements