Thousands of foreign workers in a wide variety of occupations come to the United States to work every year. These include doctors, nurses, musicians, scientists, researchers, information technology specialists, and investors, among others. All foreign workers must obtain permission to work legally in the United States, and each employment category has different requirements for both the employer and the employee. Obtaining a permanent visa (a “green card”) through employment can be the most complicated type of immigration matter. The process usually involves a high level of coordination among the employer, the employee, and the government.
The most common way to obtain a work-related green card requires a company sponsor to go through the Labor Certification process. This process is extremely complex and requires the employer to test the labor market to determine if there are qualified U.S. workers available for the foreign national’s position. An employer may not apply for a visa on behalf of a foreign national until the employer has successfully completed the Labor Certification process.
Employment-Based Preference Categories
There are five categories of employment-based immigrant visas. Some of them require an employer to go through the Labor Certification process, and some do not. The five categories are as follows:
First preference (EB-1): persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers. Labor Certification is not required for this category.
Second preference (EB-2): persons who are members of the professions holding advanced degrees or persons with exceptional ability in the arts, sciences, or business. Labor Certification is required for this category unless the applicant qualifies for a National Interest Waiver.
Third preference (EB-3): persons who are professionals, skilled workers, and other workers. Labor Certification is required for this category. Labor Certification is required for this category.
Fourth preference (EB-4): persons who are “Special Immigrants.” These include certain religious workers, employees of U.S. foreign service posts, alien minors who are wards of courts in the U.S., and others. Labor Certification is not required for this category.
Fifth preference (EB-5): business investors who invest at least $1 million (or $500,000, if the investment is made in a targeted employment area) in a new commercial enterprise that employees at least 10 full-time U.S. workers. Labor Certification is not required for this category.
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