Employment immigration system is based on the Preference Categories 1 through 5 (Eb-1, EB-2, EB-3, EB-4 and EB-5).
Approximately 140,000 immigrant visas are available each fiscal year for aliens (and their spouses and children) who seek to immigrate based on their job skills. If you have the right combination of skills, education, and/or work experience and are otherwise eligible, you may be able to live permanently in the United States. The five employment-based immigrant visa preferences (categories) are listed below.
Most immigrant visa preferences require you to already have a job offer from a U.S. employer. This employer will be considered your sponsor. For some visa categories, before the U.S. employer can submit an immigration petition to USCIS, the employer must obtain an approved labor certification from the U.S. Department of Labor (DOL). The DOL labor certification verifies the following:
- There are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage.
- Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Labor certification is required in the Second and Third Preference Categories with exception of immigrants receiving the National Visa Waiver in the Second category (EB-2).
Preference System for Employment-Based Immigrants:
First Preference – EB-1.
This preference is reserved for persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers.
Second Preference – EB-2.
This preference is reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.
Third Preference – EB-3.
This preference is reserved for professionals, skilled workers, and other workers.
Fourth Preference – EB-4.
This preference is reserved for “special immigrants,” which includes certain religious workers, employees of U.S. Foreign Service posts, retired employees of international organizations, alien minors who are wards of courts in the United States, and other classes of aliens.
Fifth Preference – EB-5.
This preference is reserved for business investors who invest $1 million or $500,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers.
Importance of Maintaining Non-Immigrant Status:
It is critical for an alien to maintain lawful temporary status in the United States to preserve eligibility for legal permanent residency.
Persons in the U.S. in unlawful status or who have violated U.S. Immigration Laws are generally not eligible for an immigrant visa.
In most situations, an alien will be barred from applying for adjustment of status if continuous lawful status in the United States has not been maintained. Also, if the alien decides to depart the United States to obtain an immigrant visa abroad, the alien may be subject to the three- or ten-year bar to reentry depending on the length, nature and timing of the alien’s unlawful presence in the United States. Once an alien has applied to adjust status, he is in an authorized lawful status as an applicant for adjustment of status and may obtain travel and employment authorization.
It should be emphasized that if the alien had acquired a certain period of unlawful presence in the United States before filing for adjustment of status, then he may subject himself to the three- or ten-year bar to reentry should he travel abroad on advance parole while his application to adjust status is pending.