The employment-based immigration categories are referred to as such because they are based on a foreign worker’s particular occupation and skills. The employment-based categories consists of five preference categories, each of which are subject to visa quotas and potential backlogs. Categories 2, 3, & 4 need to be certified by the Department of Labor prior to filing with USCIS, unless the occupation is on a list of occupations that have a shortage for example nurses.
The First Preference is for priority workers including persons of extraordinary ability, outstanding professors and researchers, and multinational organization executives and managers. Not subject to labor certification.
A. Persons of Extraordinary Ability
- Alien with extraordinary ability in sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation; and
- Alien seeks entry to continue work in the area of extraordinary ability; and
- Entry will substantially benefit prospectively the U.S.
- No Employer Needed
B. Outstanding Professors and Researchers
1. Recognized internationally as outstanding in a specific academic area;
2. Has 3 years experience in teaching or research in the academic area. Experience in teaching or research counted while working on advanced degree if degree is acquired, person had full responsibility for the class taught, or the research has been recognized as outstanding in the academic field.
3. Seeks entry:
a. For a tenure (or tenure track) teaching position;
b. Comparable position at university or institute of higher education to conduct research; or
c. Comparable position to conduct research with private employer if it employs at least 3 persons full-time in research activities and the departmental, division or institution has achieved documented accomplishments in an academic field.
d. If it is a research position it may be tenured, tenure track or an offer of indefinite or unlimited duration in which the researcher will have an expectation of continued employment unless there is good cause for termination.
C. Multinational Executives and Managers
Employed abroad for one year (in last 3 years) by “firm or corporation or other legal entity or an affiliate or subsidiary thereof.
No labor certification, but a job offer by the U.S. organization, is required.
The Second Preference is for members of the professions holding advanced degrees or persons of exceptional ability.
Members of the professions holding advanced degrees or their equivalent, or who because of their exceptional ability in the sciences, arts or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the U.S. and whose services are sought by an employer in the U.S. The position must require a member of the professions holding an advanced degree and the person must possess an advanced degree as shown by a master’s degree or its equivalent in education and work experience.
Third Preference is for professionals, skilled and other workers. The Fourth Preference provides for special immigrants including religious workers, court dependents, returning residents and others.
- Professionals–Baccalaureate degree (or foreign university equivalent) and person who is a member of the professions.
- Skilled Workers–Full-time permanent job requiring at least two years training or work experience. Relevant post-secondary education may be considered as training
- Other Workers–Includes foreign nationals with less than two years of training and work experience.
FOURTH PREFERENCE–SPECIAL IMMIGRANTS
- Person seeking reacquisition of citizenship/and returning resident.
- Religious Workers
- U.S. employee abroad or employee of American Institute in Taiwan for 15 years4. Panama Canal Treaty employees.
- Foreign medical graduates if entered U.S. on H/J visa, licensed to practice or practicing medicine in a state as of Jan. 1, 1978 and continued to practice and been continuously present since date of entry. Visa qualifying medical exam is not a requirement.
- Commuters from border to maintain resident status commuter’s only requirement is to show he has not been unemployed in the U.S. for 6 continuous months or has worked a minimum of 90 days the past year
- G-4–Retired G-4 officer and his spouse or unmarried son or daughter or widow (if G-4 deceased) of employee or retired employee of an international organization
- Returning resident
- Court Dependents
- Person who served honorably for 12 years in Armed Services on active duty
- NATO civilian employees
- Broadcasters entering the U.S. to work for the International Broadcasting Bureau of the Broadcasting Board of Governors (BBG) or for a grantee of the Broadcasting Board.
- Translators with the U.S. Armed Forces
The Fifth Preference is an investor provision, which grants residency to persons who invest significant funds in the U.S. and create (or maintain in certain circumstances) 10 jobs for U.S. workers. Please see our section relating to the EB-5 visa.