An immigrant is a foreign national who is authorized to live and work permanently in the United States. To become an immigrant on the basis of job skills, the foreign national must go through a multi-step process:
Most employment based immigrants require labor certification approval through the Department of Labor ("DOL"). To obtain such approval, it is necessary for an employer to file an application with the DOL on behalf of the applicant. When this petition is approved, it is known as an individual alien labor certification. Not all applicants require labor certification, however, and these applicants may proceed directly to the next step.
Once an alien labor certification has been approved for the applicant (or the applicant is applying in a category that does not require one), the next step is the filing of an immigrant preference petition. Most petitions require a sponsoring employer, and must be signed by the employer. Some, however, permit the applicant to "self petition." Either way, unless and until an immigrant preference petition has been approved on behalf of the intending immigrant, nothing more can be done.
Following the approval of the immigrant preference petition, the applicant must wait until his or her priority date is "current" (there is an immigrant visa number available) under the annual (and per-country, if applicable) quota for his or her immigrant classification. (Note: Under certain circumstances, a previously established priority date may be retained, even though the employee has changed jobs or even employers.)
When a visa is available, the applicant has a choice of either of two paths to make an application for lawful permanent resident ("green card") status:
Consular immigrant visa processing; or,
Adjustment of status in the United States (if qualified).
The legal authority for this procedure is set forth in the following Immigration and Nationality Act ("INA") sections: INA § 201, INA § 202, INA § 203 and INA § 204 . In addition, the INS has published rules in the Federal Register which explain the eligibility requirements for individuals petitioning for employment-based immigration based on specific criteria. They are found in the Code of Federal Regulations [CFR] at 8 CFR § 204.5 .
There are five categories of employment based immigration:
First Preference (EB-1 priority workers): aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.
Second Preference (EB-2 workers with advanced degrees or exceptional ability): aliens who are members of the professions holding advanced degrees or their equivalent and aliens who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.
Third Preference (EB-3 professionals, skilled workers, and other workers): aliens with at least two years of experience as skilled workers, professionals with a baccalaureate degree, and others with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.
Fourth Preference (EB-4 special workers such as those in a religious occupation or vocation): aliens who, for at least two years before applying for admission to the United States, have been a member of a religious denomination that has a nonprofit religious organization in the United States, and who will be working in a religious vocation or occupation at the request of the religious organization.
Fifth Preference (EB-5 Employment Creation) Persons who invest at least $500,000 (in special areas) or $1,000,000 (anywhere) in businesses that employ at least ten local workers.
