Employment-based Immigration
Employment based immigration is a complex process that may involve a number
of government agencies within the Federal Department of Labor, the State
Department of Labor, the United States Citizenship and Immigrant Services
(USCIS) and the Department of State (DOS).
It allows United States employers to sponsor, for lawful permanent residence in
the United States, foreign nationals who have the skills, ideas, knowledge and
talents needed in the United States.
Labor Certification/PERM
Foreign labor certification programs permit U.S. employers to hire foreign
workers on a temporary or permanent basis to fill jobs essential to the U.S. economy. Certification may be obtained in cases where it can be demonstrated that there
are insufficient qualified U.S. workers available and willing to perform the
work at wages that meet or exceed the prevailing wage paid for that occupation
in the area of intended employment.
Foreign labor certification programs are designed to assure that the admission
of foreign workers into the United States on a permanent or temporary basis
will not adversely affect the job opportunities, wages, and working conditions
of U.S. workers.
Priority Workers
This preference category includes individuals of "sustained national or
international acclaim" with "extraordinary ability" in the
sciences, arts, education, business or athletics; "outstanding professors
and researchers" recognized internationally in a specific academic area;
and "certain multinational executives and managers." Foreign
nationals eligible for O-1 or L-1 non-immigrant visa status often qualify for
immigrant status under this category.
This category requires no labor certification as a condition of visa issuance.
Professionals with Advanced Degree or Exceptional Ability
This category includes members of the professions holding advanced degrees and aliens who, because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.
To qualify as a member of the professions the applicant must have an advanced degree, which the INS takes to mean "any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate.'' This essentially means a United States masters degree or above. The INS has indicated that a U.S. or equivalent foreign baccalaureate followed by at least five years of progressive experience in the specialty will be the equivalent to a masters degree. If the profession requires a degree higher than a masters, the alien must have that degree.
Professionals, Skilled Workers
This category consists of skilled workers, professionals and "other workers". Skilled workers are those whose positions require a minimum of two years of training or experience. Professionals must possess a bachelor degree in the field and must establish that a bachelor degree is the normal requirement for entry into the profession.
However, due to the shortage of registered nurses and physical therapists in the United States, the law currently provides for their automatic labor certification under Schedule A. Schedule A is a list of pre-certified occupations for which the Secretary of the Department of Labor previously has determined that there are not sufficient U.S. workers who are able, willing, qualified and available and that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of aliens in such occupations. As a result, foreign Nurses and physical therapists that have passed the CGFNS exam or are certified as an NCLEX-RN or by FCCPT can obtain permanent residence without their petitioning employer needing to test the labor market prior to filing a visa petition on their behalf.
The final category of "other workers" means essentially unskilled workers.
Professionals and skilled workers are placed on the same waiting list for available visas. However, other workers are placed on a separate waiting list. Given the fact that backlog for "other workers" is effectively twenty years, the filing of such a petition for an unskilled worker is not recommended.
Dependents of Employment Based Beneficiaries
The dependent spouse and child of an employment-based beneficiary are
considered derivative beneficiaries. They are therefore eligible for lawful
permanent residence under the same employment-based preference category as the
principal beneficiary.
EB-5 Visa for Immigrant Investors
The EB-5 Visa for Immigrant Investors is a United States visa created by the Immigration Act of 1990. This visa provides a method of
obtaining a green card for foreign nationals who invest money in the United States. To obtain the visa, individuals must invest at least $1,000,000 USD,
creating at least 10 jobs. By
investing in certain regional centers with high unemployment rates, the
required investment amount is only $500,000.
To qualify the foreign entrepreneur must invest in a "new commercial
enterprise" which can be a startup business; a business that is purchased
and restructured; or a troubled business in which the entrepreneur
substantially changes/expands the net worth or number of employees of the
business. Commercial enterprise means any for-profit activity formed for
the ongoing conduct of lawful business including, but not limited to, a sole
proprietorship, partnership, holding company, joint venture, corporation,
business trust, or other entity that may be publicly or privately owned.
The investor must be actively involved in the management of the business.
After two years, the investor must demonstrate that he/she has satisfied the
aforementioned conditions in order to maintain lawful permanent residence in
the United States.
Alcaraz Tocchini LLP