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Work Visas
You
can work in the U.S. if you belong to a preference category.
The Immigration and
Nationality Act provides a yearly minimum of 140,000 employment-based
immigrant visas which are divided into five preference categories.
They may require a labor certification from the U.S. Department of
Labor (DOL), and the filing of a petition with the Immigration and
Naturalization Service (INS).
CATEGORIES
Employment First
Preference (E1)
Priority Workers receive
28.6 percent of the yearly worldwide limit. All Priority Workers must
be the beneficiaries of an approved Form I- 140, Immigrant Petition
for Foreign Worker, filed with INS. Within this preference there are
three sub-groups:
Persons of extraordinary
ability in the sciences, arts, education, business, or athletics.
Applicants in this category must have extensive documentation showing
sustained national or international acclaim and recognition in the
field of expertise. Such applicants do not have to have a specific job
offer so long as they are entering the U.S. to continue work in the
field in which they have extraordinary ability. Such applicants can
file their own petition with the INS, rather than through an employer;
Outstanding professors
and researchers with at least three years experience in teaching or
research, who are recognized internationally. No labor certification
is required for this classification, but the prospective employer must
provide a job offer and file a petition with the INS; and
Certain executives and
managers who have been employed at least one of the three preceding
years by the overseas affiliate, parent, subsidiary, or branch of the
U.S. employer. The applicant must be coming to work in a managerial or
executive capacity. No labor certification is required for this
classification, but the prospective employer must provide a job offer
and file a petition with the INS.
Employment Second
Preference (E2)
Professionals Holding
Advanced Degrees, or Persons of Exceptional Ability in the Arts,
Sciences, or Business receive 28.6 percent of the yearly worldwide
limit, plus any unused Employment First Preference visas. All Second
Preference applicants must have a labor certification approved by the
DOL, or Schedule A designation, or establish that they qualify for one
of the shortage occupations in the Labor Market Information Pilot
Program (later). A job offer is required and the U.S. employer must
file a petition on behalf of the applicant. Aliens may apply for
exemption from the job offer and labor certification if the exemption
would be in the national interest, in which case the alien may file
the petition, Form I-140, along with evidence of the national
interest. There are two subgroups within this category:
Professionals holding an
advanced degree (beyond a baccalaureate degree), or a baccalaureate
degree and at least five years progressive experience in the
profession; and
Persons with exceptional
ability in the arts, sciences, or business. Exceptional ability means
having a degree of expertise significantly above that ordinarily
encountered within the field.
Employment Third
Preference (E3)
Skilled Workers,
Professionals Holding Baccalaureate Degrees and Other Workers receive
28.6 percent of the yearly worldwide limit, plus any unused Employment
First and Second Preference visas. All Third Preference applicants
require an approved I-140 petition filed by the prospective employer.
All such workers require a labor certification, or Schedule A
designation, or evidence that they qualify for one of the shortage
occupations in the Labor Market Information Pilot Program. There are
three subgroups within this category:
Skilled workers are
persons capable of performing a job requiring at least two years'
training or experience;
Professionals with a
baccalaureate degree are members of a profession with at least a
university bachelor's degree; and
Other workers are those
persons capable of filling positions requiring less than two years'
training or experience.
Employment Fourth
Preference (E4)
Special Immigrants
receive 7.1 percent of the yearly worldwide limit. All such applicants
must be the beneficiary of an approved I-360, Petition for Special
Immigrant, except overseas employees of the U.S. Government who must
use Form DS-1884. There are six subgroups:
-
Religious workers
coming to carry on the vocation of a minister of religion, or to
work in a professional capacity in a religious vocation, or to
work for a tax-exempt organization affiliated with a religious
denomination;
-
Certain overseas
employees of the U.S. Government;
-
Former employees of
the Panama Canal Company;
-
Retired employees of
international organizations;
-
Certain dependents
of international organization employees; and
-
Certain members of
the U.S. Armed Forces.
Employment Fifth
Preference (E5)
Employment Creation
Investors receive 7.1 percent of the yearly worldwide limit. All
applicants must file a Form I-526, Immigrant Petition by Alien
Entrepreneur, with the INS. To qualify, an alien must invest between
U.S. $500,000 and $1,000,000, depending on the employment rate in the
geographical area, in a commercial enterprise in the United States
which creates at least 10 new full-time jobs for U.S. citizens,
permanent resident aliens, or other lawful immigrants, not including
the investor and his or her family.
LABOR CERTIFICATION
A person whose
occupation requires a labor certification must have prearranged
employment in the United States.
Individual Labor
Certification
The applicant must
complete DOL Form ETA-750B, Statement of Qualifications of Alien, and
send this completed form to the prospective employer who completes
Form ETA-750A, Application for Alien Employment Certification, Offer
of Employment. The prospective employer submits both forms to the
local office of the State Employment Service in the area in the United
States where the work will be performed. The employer will then be
notified by the appropriate regional office of the DOL of its approval
or disapproval.
Schedule A
Designation
The Department of Labor
has made a schedule of occupations for which it delegates authority to
the INS to approve labor certifications. Schedule A, Group I, includes
physical therapists and nurses. Schedule A, Group II includes aliens
of exceptional ability in the sciences and arts (except performing
arts). To apply for Schedule A designation, the employer must submit a
completed, uncertified Form ETA-750 in duplicate to the INS along with
the I-140 petition.
Labor Market
Information Pilot Program
The Immigration Act of
1990 provides for the DOL to establish a Labor Market Information
Pilot Program which will define up to ten occupational classifications
in which there are labor shortages. For aliens within a listed
shortage occupation, a labor certification will be deemed to have been
issued for purposes of an employment-based immigrant petition. The INS
can provide further information.
PETITION
All intending immigrants
who plan to base their immigrant visa application on employment in the
United States must obtain an approved immigrant visa petition from the
INS. If a necessary labor certification is granted, the employer may
then file a Form I-140, Petition for Prospective Immigrant Employee,
with the INS for the appropriate employment-based preference category.
VISA INELIGIBILITY /
WAIVER
The immigration laws of
the United States, in order to protect the health, welfare, and
security of the U.S., prohibit the issuance of a visa to certain
applicants. Examples of applicants who must be refused visas are those
who: have a communicable disease, or have a dangerous physical or
mental disorder; have committed serious criminal acts; are terrorists,
subversives, members of a totalitarian party, or former Nazi war
criminals; have used illegal means to enter the U.S.; or are
ineligible for citizenship. Some former exchange visitors must live
abroad for two years. Physicians who intend to practice medicine must
pass a qualifying exam before receiving immigrant visas. If found to
be ineligible, the consular officer will advise the applicant of any
waivers.
OTHER IMPORTANT
INFORMATION
Documents for Visa
Application
All applicants must
submit certain personal documents such as passports, birth
certificates, police certificates, and other civil documents, as well
as evidence that they will not become public charges in the United
States. The consular officer will inform visa applicants of the
documents needed as their applications are processed.
Medical Examinations
Before the issuance of
an immigrant visa, every applicant, regardless of age, must undergo a
medical examination. The examination will be conducted by a doctor
designated by the consular officer. The applicant must pay for the
examination.
Visa Fees
The cost of each formal
immigrant visa application is US$260 for application and US$65 for
issuance. Fees must be paid for each intending immigrant, regardless
of age, and are not refundable. Local currency equivalents are
acceptable. Fees should not be sent to the consular office unless
requested specifically. The INS charges additional fees for filing
petitions.
Numerical Limitations
Whenever there are more
qualified applicants for a category than there are available numbers,
the category will be considered oversubscribed, and immigrant visas
will be issued in the chronological order in which the petitions were
filed until the numerical limit for the category is reached. The
filing date of a petition becomes the applicant's priority date.
Immigrant visas cannot be issued until an applicant's priority date is
reached. In certain heavily oversubscribed categories, there may be a
waiting period of several years before a priority date is reached. For
the latest priority dates, call (202) 663-1541.
Miscellaneous
Since no advance
assurances can be given that a visa will be issued, applicants are
advised not to make any final travel arrangements, not to dispose of
their property, and not to give up their jobs until visas have been
issued to them. An immigrant visa can be valid for four months from
issuance date.
With few exceptions, a
person born in the United States has a claim to U.S. citizenship.
Persons born in countries other than the U.S. may have a claim, under
United States law, to U.S. nationality if either parent was:
-- Born or naturalized
in the U.S., or
-- A U.S. citizen at the
applicant's birth.
Any applicant believing
he or she may have a claim to United States citizenship should not
apply for a visa until his or her citizenship has been determined by
the consular office.
FURTHER INQUIRIES
Further information
about the specific categories of immigrant visas listed above and
which category a potential employee may fall under can be obtained
from your local INS office. Questions on the visa application
procedures at the American consular office overseas should be
addressed to that consular office.
UNITED STATES DEPARTMENT
OF STATE
Bureau of Consular
Affairs
Visa Services
February 1998
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