EMPLOYMENT BASED IMMIGRATION

An immigrant is a foreign national who is authorized to live and work permanently in the United States. You must go through a multi-step process to become an immigrant based on employment.

The USCIS must approve an immigrant petition (application) that was filed for you, usually by an employer.

In most employment categories (See EB-2 and EB-3 eligibility and filing information below), a U.S. employer must complete a labor certification (ETAForm 9089) on your behalf. This important stage involves advertising for the position. Once the labor certification is approved, your employer can file Form I-140.

If you are already in the United States, you must apply to adjust to permanent resident status when a visa number becomes available. Please see How Do I Get an Immigrant Visa Number? and How Do I Become a Lawful Permanent Resident while in the United States? If you are outside the United States when an immigrant visa number becomes available, you will be notified to go to the local U.S. Consulate to complete the processing for an immigrant visa.

LABOR CERTIFICATION

In the complex Labor Certification process, a U.S. employer seeks a Labor Certificate from the U.S. Department of Labor for the benefit of a prospective alien employee. A Labor Certificate is a pre-requisite for a U.S. employer to file an immigration petition for the alien employee based on EB-2 and EB-3 categories.

The Labor Certification requirement is waived for a National Interest Waiver petition under EB-2 and is not required in an EB-1 petition. For information on whether you qualify for the National Interest waiver under EB-2 or EB-1 categories, please consult with our experienced immigration attorneys.

In Labor Certifications, the U.S. sponsoring employer is the petitioner and the prospective alien employee is the beneficiary. Since the Labor Certification is filed on the basis of prospective employment, it does not matter whether the alien works for the sponsoring employer during the application or after it is approved. However, the foreign employee has to work for a reasonable period of time for the sponsoring employer after receiving permanent residency.

EB-1 CATEGORY

A First Preference Immigration Petition (EB-1) is an employment-based petition for permanent residence reserved for those who are among the most able and accomplished in their respective fields within the arts, sciences, education, business, or sports. There are three (3) types of EB-1 petitions:

. Alien of Extraordinary Ability EB-1(a)

. Outstanding Researcher/Outstanding Professor EB-1(b)

. Managers and Executive Transferees EB-1(c)

The most notable advantage for those who qualify for an EB-1 petition is the lack of a Labor Certification requirement.

EB-2 CATEGORY

A Second Preference Immigration Petition (EB-2) is an employment-based petition for permanent residence reserved for members of the professions holding advanced degree or aliens of exceptional ability. Applicants must have a job offer and labor certification. However, USCIS may waive the job offer and labor certification requirements if it is in the national interest to do so.

EB-3 CATEGORY

A Third Preference Immigration Petition (EB-3) is an employment-based petition for permanent residence reserved for skilled workers, professionals and other workers including foreign nationals with less than two years of training and work experience. All applicants in EB-3 category must have a job offer and labor certification.

 

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