Employment based petition is a process in which a U.S. employer sponsors a foreign national employee to be a permanent resident and to work for such employer. The foreign national employee can be presently in the U.S., or a prospective employee abroad. There are five different categories under employment based immigrant petitions. While three of the five categories required an employer to file for a labor certification through an electronic application process, called PERM, with the U.S. Department of Labor before filing an employment-based petition, the first and fifth categories do not have such a cumbersome requirement.

Despite of the name, there are no particular preferences. That is, no one employment-based category receives preferential treatment over the others. Whether one will receive an immigrant visa depends on various factors, such as the position offered and foreign national's qualifications, documentations, the employer, the person's background, and most importantly, the availability of such visa. Be sure to consult an experienced immigration attorney at Garg and Associates, PC to assist you in filing any immigration application, whether it is an employment-based or a family based immigrant petition. Garg and Associates PC serves southern California, including Long Beach, Orange County, Los Angeles, San Fernando Valley, Hollywood, Fountain Valley, Costa Mesa, Santa Ana, Westminster, Newport Beach, Huntington Beach, Lakewood, Carson City, Santa Monica, Wilmington, Torrance, Glendale, and San Pedro. Below are the five different employment-based categories.

• Employment-based First Preference - Employment-based first preference has three subcategories of applicants who are not required to have a Labor Certification (PERM) approved prior to filing the immigrant petition. They are as follows:
  • Subcategory (a) - Workers of extraordinary skills in the arts, sciences, educations, businesses, and athletics. Although most people recognized that this subcategory can be used for internationally recognized foreign nationals, it can also be used for those that do not quite meet this status. For example, a well-known researcher in a specialized area of science can be qualified if the they can demonstrate such skills and knowledge. Documents such as articles, published researches, recognition among colleagues, and local awards are all evidence that can be used to qualify such person.
  • Subcategory (b) - Outstanding professors and researchers. This category is particularly useful for college researchers who have demonstrated specialized knowledge. This category will continue to be utilized more often as the number of foreign nationals who have at least a master's degree in the U.S. are unable to apply for H-1Bs' because of the numerical limits.
  • Subcategory (c) - Multi-national executive and managers. This subcategory is especially useful for foreign nationals who are international executives and hold various positions with different inter-related companies. The employer who sponsors such a person may also be a business entity in which the applicant owns stocks, company shares, or partnership interests. A foreign national who enters the United States as an L-1A intra-company executive employee or an E-2 Treaty Investor who holds executive capacity (among other requirements) may be qualified under this subcategory. Please consult with one of Garg and Associates's Immigration Attorneys for more information.

Every year, there are 40,000 visas available for employment-based first preference category. Presently, the visa number is "current" for this category. The 40,000 limit of visas available each year has not been reached. Thus, a visa is immediately available for foreign nationals who are qualified under one of the three subcategories described above. Employers should take advantage of this opportunity to file immigrant petitions for employees who are qualified. Over the past three years, the numerical limit was exhausted under this category because of the number of applications. In those instances, there was a black-log of applications and the applicants had to wait until a visa was available based on the priority date, the date of the application.

• Employment Based Second Preference - The second employment-based preference is reserved for three types of workers. They are as follows:
  
  
  • Workers of exceptional skills in the arts, sciences, and business.
    
    
  • Foreign nationals with advanced degrees, such as masters and doctorate degrees.
    
    
  • Physicians who will be practicing medicine in the U.S. in an underserved area.

Each year, there are 40,000 visas available, plus any unused visas from first preference, for this category. Similar to first preference, the visa number is usually "current" for this category. That means that a visa would be immediately available for aliens who are qualified. However, the employer must first obtain a job offer and an approved PERM from the U.S. Department of Labor prior to applying for their immigrant petitions. Previously, there was a large back-log in Labor Certification applications. Under the new PERM process, the application can be approved as quickly as one month after filing. Oftentimes however, the process requires three to six months for a PERM labor certification to be approved.

• Employment-based Third Preference - Each year, there are 40,000 visas allocated to the employment-based third preference. Often, there is a huge shortage of visas under this category and there is a long waiting period for a visa to be available. Similar to the second preference, applicants must have job offers and labor certifications, PERM, approved prior to filing an immigrant petition. There are also three subcategories under employment based third preference. They are as follows:
  
  
  • Professionals who have bachelor degrees that are equivalent to a U.S. degree. Usually, applicants who are qualified under this category are also qualified under H-1B nonimmigrant visas. Traditionally, these professionals would apply for an H-1B visa and apply for immigrant petitions under this category while working for the U.S. employer. However, because the number of H-1B visas are limited to 65,000 (20,000 of which are reserved for applicants who obtained a master's degree or higher from a U.S. university), the number of applicants quadrupled the number of visas available in 2007. Thus, an alternative option would be to file for an immigrant petition and wait until a visa is available for the applicant's priority date. In the mean time, the applicant will have to maintain some other non-immigrant status in the U.S., such as an L-1A/L-1B.
    
    
  • Skilled workers with two or more years experience in a specialized area. Similar to professional workers, there are long waiting-periods in which the foreign national will have to wait in the home country or maintain other statuses in the U.S.
    
    
  • Unskilled workers for jobs that required less than two years experience. Currently, the U.S. Department of State is not issuing any visa for unskilled workers due to the lack of visas available for the other two subcategories.

NOTE: Schedule "A" blanket certifications for medical-related professions are no longer available as of November of 2006. As such, all nurses and physical therapists now must apply through employment based third preference, or through H-1B temporary worker visas.

• Employment-based Fourth Preference - The fourth employment based preference is reserved for religious workers and other special immigrants. Each year, 10,000 immigrant visas are reserved for applicants under employment-based fourth preference. The "special immigrants" usually only make up a small number of the 10,000. The majority of the visas are taken up by three categories of religious workers.
  
  
  • Qualified ministers, priests, monks, and rabbis of a recognized religion.
    
    
  • Professionals employed in a religious occupation or vocation. The professionals must be qualified in their specific field. For example, an accountant must have an accounting or finance background.
    
    
  • Skilled and unskilled workers in a religious occupation or vocation.

• Employment-based Fifth Preference - The fifth category of employment-based visa is reserved for aliens who invest in the U.S. for at least $1,000,000 if the business is in an urban area. If the business is in a rural area, then the investment can be as small as $500,000. Additionally, the company can be a new company or an existing company and must employ at least 10 U.S. citizens or permanent residents. The foreign national must control and manage the company. The advantage under this category is that the foreign national and his/her family (including unmarried children under 21) will obtain permanent residency status immediately upon arriving and a green card within weeks thereafter. No PERM is required under this category.

NOTE: Please do not confuse employment based fifth preference with E-2 Treaty Investor. An E-2 Treaty Investor is a "non-immigrant" visa that allows foreign nationals to come to the United States to invest and maintain their business in the U.S. The E-2 visas are usually granted for 2 years and must be renewed every two years. In some rare instances, the E-2 visas are granted for up to five years. In any case, the E-2 Treaty Investor visa does not require a large amount of investment, so long as the investment is "substantial" with respect to the type of investment. Please click on the E-2 Treaty Investor on the main immigration page for more details.

The Immigration Attorneys At Garg and Associates, PC take a proactive approach in resolving difficult immigration cases, which may require creative processes, steps, or applications to obtain your immigration goals. The Garg and Associates Immigration Attorneys have the knowledge, experience, and confidence to help you achieve your goals. Please feel free to give us a call at 1-877-517-4275 or Contact Us Online . If you are not in the Long Beach or Houston area, we can schedule a time for a telephonic consultation at your convenience.

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