Employment-Based Immigration

The First Three Immigrant Categories:

An Overview

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NYCLA Committee on Immigration and Nationality Law

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Mission: Possible -- The Basics of Immigration Law

March 6, 2012

• Employment-Based First Preference:
• Extraordinary Ability - INA §203(b)(1)(A)
• Outstanding Professor/Researcher - INA §203(b)(1)(B)
• Multinational Executive/Manager - INA §203(b)(1)(C)
• Employment-Based Second Preference:
• Exceptional Ability/National Interest Waiver - INA §203(b)(2)(A-C)
• Members of the Professions with Advanced Degrees - INA §203(b)(2)(A)
• Employment-Based Third Preference:
• Professionals, Skilled Workers, and Other Workers - INA §203(b)(2)

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But first, some tangents….

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Things you’ll need to know for everything else to make sense.

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The Numbers (First, Second, Third)

Do they mean anything?

• Yes! The preference classification determines how quickly the last part of the process can begin.
• Every green card process has two parts:
• There IS a reason to give this person permanent residence – for employment-based, the preference petition.
• There is no reason NOT to give this person permanent residence (this process can’t begin until an immigrant visa is immediately available).

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How is Immigrant Visa availability determined?

• Statutory allotments by preference class.
• Within preference classes, by country of birth.
• Foreign nationals queue for immigrant visas based on preference class/CoB and when case filed (PD).
• Like going to the DMV, and equally painful!
• Take a number – Date PR case first filed becomes place on line (look-back for labor certifications).
• Dept. of State publishes Visa Bulletin (“Now Serving” sign) every month.
• Final stage of PR processing can start once date listed for a foreign national’s preference class and country of birth reach his/her PD.

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Labor Certification

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• Certification from the U.S. Department of Labor that no U.S. workers are qualified, willing and available to perform the job offered by the employer – no U.S. workers will be harmed.
• Necessary prerequisite to filing some Second Preference and all Third Preference employment-based cases with USCIS
• Sounds similar to “Labor Condition Application” portion of the H-1B nonimmigrant visa filing:
• LCA involves notification that the employer wishes to hire a worker in H-1B status.
• Labor Certification – more than notification, an actual test of the labor market.

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Labor Certification – Continued

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• PERM – Program Electronic Review Management – the Process by which Labor Certification is accomplished through U.S. Department of Labor:
• Job description and requirements drafted in consultation with employer (requirements will determine preference class)
• Recruitment period:
• Advertisements placed (at least two print ads, one can be a Journal for professional positions, three additional methods for professional jobs);
• Applicants interviewed by manager/hiring official;
• If none qualify, recruitment report drafted and documentation assembled;
• Case filed electronically with U.S. Department of Labor (timeframes).
• Note on attorney involvement…

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Extraordinary Ability (First Preference)

• Extraordinary Ability:
• In the sciences, arts, education, business, or athletics.
• Achievements have been demonstrated by sustained national or international acclaim.
• Recognized through extensive documentation.
• Two ways to show Extraordinary Ability:
• Receipt of a major internationally recognized award (Nobel).
• The other way…

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“Normal” way of obtaining Extraordinary Ability classification

• Must meet at least three of ten “tests”:
• Receipt of lesser nationally or internationally recognized prizes or awards;
• Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance;
• Performance in a lead or critical role for organizations of major significance;
• Membership in field-related organizations which require outstanding achievements of their members;
• Published material about the person in major media or professional/trade publications;
• Published scholarly material authored by the foreign national;
• Participation as a judge of the work of others;
• Participation in artistic exhibitions or showcases;
• High salary or other remuneration for service rendered;
• Commercial success in the performing arts.

“Normal” way of obtaining Extraordinary Ability classification - Continued

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• Also: letters from six to ten other experts in the field
• Not just co-workers, former bosses or friends from home country.
• Other recognized experts, preferably geographically diverse & employer-diverse.
• Attesting to What?-Kazarian v. USCIS, 596 F3rd 1115 (9^th Cir 2010)
• Changed Adjudication Procedure – two parts now
• First, go through the statutory criteria
• Second: “Final Merits Determination”
• Beneficiary (Applicant) one of the very few who have risen to the top of their field of endeavor; AND
• Sustained national/international acclaim, achievements have been recognized in their field of expertise.

“Normal” way of obtaining Extraordinary Ability classification - Continued

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• Other important points:
• No Labor Certification Required – as with all First Preference cases.
• Can be SELF-petitioned – employment based, but no employer-sponsor required.
• Like the O-1 nonimmigrant visa?

Outstanding Professor/Researcher (First Preference)

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• DOES Require a job offer.
• What kind of job?
• Tenure-track teaching position.
• Similar research position at a University or institution of higher education ("similar” = tenured, tenure-track, or offer of unlimited duration).
• Similar research position with a private employer, IF the employer has an established research department, division or institution which has already achieved documented success in the academic field.

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Outstanding Professor/Researcher (First Preference)

Continued

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How does a foreign national meet the requirements?

• At least three years of experience in teaching or research in the academic area (can include research or teaching while working on an academic degree, if recognized as outstanding).
• Internationally recognized as outstanding.
• No specific degree requirement, but very difficult to meet the requirements for this category without an advanced degree.
• What else?

Outstanding Professor/Researcher (First Preference)

Continued

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• Again with the “tests” – here two of six:
• Receipt of major prizes or awards for outstanding achievement;
• Membership in associations which require outstanding achievements as a prerequisite to membership;
• Published material in professional publications about the foreign national's work;
• Published books or articles by the foreign national about his or her work in the academic field;
• Evidence of original scientific research; or
• Evidence of the foreign national's participation as a judge of the work of others (such as peer review for journals or academic competitions).
• Letters from other recognized experts in the academic field*.

Multinational Executive or Manager

(First Preference)

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• Foreign national will work in an executive or managerial capacity for a U.S. entity.
• Has worked for a related overseas entity (parent, subsidiary, affiliate, joint venture) for at least one year.
• Work overseas was within three years before coming to U.S. to work for the related U.S. company.
• That’s it – no tests, no letters etc. Just have to prove these three things.
• Somewhat like the L-1A, but not the L-1B.

Exceptional Ability/National Interest Waiver

(Second Preference)

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• What is “Exceptional Ability?”
• A degree of expertise significantly above what would be considered typical.
• Something less than “Extraordinary Ability”
• Must be in the Arts, Sciences or Business.
• How do we prove it?

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Exceptional Ability/National Interest Waiver

(Second Preference) - Continued

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• Yet more “tests” (three out of six required):

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• The foreign national has a degree relating to the area of exceptional ability;
• Letters from current and former employers confirming that the foreign national has at least ten years of work experience in the field;
• The foreign national has a license to practice his or her profession;
• The foreign national has commanded a high salary for services rendered;
• The foreign national is a member of a professional association in his or her field; or
• The foreign national has received recognition for achievements and contributions of significance to the field by peers, government entities, or professional or business organizations.

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• Again, letters from recognized experts – and again, Kazarian two-part analysis (one of few at top of field, sustained national/international acclaim).

Exceptional Ability/National Interest Waiver

(Second Preference) - Continued

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• What is the National Interest Waiver?
• Waiver of the Labor Certification requirement.
• Remember, First Preference cases never require Labor Certification – Second Preference cases do, but can be waived with a National Interest Waiver.
• How do we prove that granting this foreign national permanent residence is in the national interest?

Exceptional Ability/National Interest Waiver

(Second Preference) - Continued

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• Substantial Prospective Benefit to the U.S.
• Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm. 1998):
• Employment sought in an area of substantial intrinsic merit (the field of endeavor itself is beneficial, and the foreign national will continue in the field in the U.S. if the waiver is granted);
• Benefit will be national in scope, and will not merely benefit a locality or region; and
• National interests of the U.S. would be adversely affected if a labor certification were required.

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Exceptional Ability/National Interest Waiver

(Second Preference) – Continued

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• Other important points:
• Details of Substantial Intrinsic Merit: can be benefit to the U.S. economy, wages/working conditions, education, health care, housing, environment/resources, benefit to U.S. government agency.
• Only employer-specific if employer-petitioned AND based on work being performed for that specific employer.
• No directly analogous nonimmigrant visa – will often be on H-1B, but not necessarily.

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Members of the Professions with Advanced Degrees

(Second Preference)

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• Job offer & Labor Certification required absent National Interest Waiver, must be for “professional” job.
• Advanced Degree: Master’s level or above.
• Job must require Master’s – not enough that foreign national has a Master’s.
• Equivalence is acceptable – Bachelor’s degree plus five years’ progressively more responsible work experience.
• Again, will often be on H-1B (maybe one of the 20,000 reserved for foreign nationals with U.S. Master’s degrees), but could be on many types of nonimmigrant visa.

Professionals, Skilled and Other Workers

(Third Preference)

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• Job Offer and Labor Certification always required.
• Professionals: Bachelor’s-level degree required and job must be professional in nature.
• Skilled Workers: Job requires at least two years of experience.
• Other Workers: Less than Bachelor’s, two years of training/work experience required – rarely used in practice.
• Normally on H-1B or L-1B, although theoretically may be on several types of nonimmigrant visa.

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Stuart J. Reich

Law Offices of Stuart J. Reich

11 Broadway, Suite 615

New York, NY 10004

(212) 430-6582 phone

(212) 430-6583 facsimile

sreich@ReichImmigration.com

http://www.ReichImmigration.com

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