The Immigration and Nationality Act allows for the issuance of a certain number of visas each year. The total number of employment-based immigrant visas available each year is 140,000. Applicants must submit Form I-140 to US Citizenship and Immigration Services for most employment-based permanent residence petitions (USCIS).
There are five different types of visas available, each with its own set of requirements. The following is a general overview of these categories.
EB-1: “Priority Workers” get first priority.
The first-preference petitions for “priority workers” account for 28.6% of the yearly worldwide quota, or about 40,000 visas. Each priority worker must be the recipient of a Form I-140 that has been authorized.
Petitioners for first-preference status are divided into three categories:
EB-1 A: Applicants with “extraordinary ability” in the sciences, arts, education, business, or athletics are eligible for this category. Applicants must present detailed proof demonstrating persistent national or international acclaim and recognition in their field of competence to be considered “exceptional.” Applicants do not need a particular employment offer if they are seeking entry into the United States to continue working in a sector where they have been recognized for exceptional qualities. As a result, no labor certification is required, and applicants can petition on their own behalf without the necessity for a sponsoring business.
EB-1 B: This category is reserved for “outstanding” professors and researchers. Applicants must have at least three years of teaching or research experience, as well as international recognition in their fields of effort, to be considered “outstanding” in one of the two professional capacities. Employer sponsorship is required instead of labor certification: prospective employers (i.e. universities or private enterprises with established research departments) must petition on behalf of immigrants and give them with a job offer.
EB-1 C: This category covers executives and managers who are transferring to the United States from another country. Applicants must have worked for at least one of the three years preceding to the filing of the petition by the foreign affiliate, parent, subsidiary, or branch of a U.S. firm. Applicants must additionally apply for entrance into the United States in order to work as a manager or executive. While no labor certification is required, potential employers must act as petitioners and make a job offer to the immigrant beneficiaries they are sponsoring.
EB-2: Second Preference
Second-preference petitions for advanced degree holders and foreign nationals with extraordinary abilities account for 28.6% of the yearly worldwide limit, or around 40,000 visas, plus any unused EB-1 visas for the year.
Applicants must have an educational background beyond a bachelor’s degree and at least five years of progressive experience in their trade to qualify as a professional with an advanced degree.
Applicants must exhibit knowledge in the arts, sciences, or business that is much more than that normally encountered in their professions to qualify as a foreign national with exceptional ability.
With two exceptions, EB-2 petitions require both PERM labor certification and a job offer.
The job offer criterion for a National Interest Waiver (NIW) application has been removed by the USCIS. A NIW application is a petition that immigrants can file on their behalf with proof proving that their admission to the US would benefit national interests. NIW applications have grown in popularity over the years, and with the growing number of NIW petitions filed, it’s more vital than ever to seek the advice of an expert immigration attorney.
The position is classified as Schedule A. (Please see this page for further information on qualified occupations.)
(Previously, an applicant may show that he or she was qualified for a deficient occupation through the Labor Market Information Pilot Program, but that program is no longer available.)
If neither of the following exclusions apply, a U.S. employer must file a Form I-140 petition on behalf of an alien beneficiary based on a PERM labor certification that has been authorized.
EB-3: Third Preference
“Skilled employees,” “professionals,” and (very broadly) “other workers” are the three subgroups for which third-preference petitions are reserved. These visas account for another 28.6% of the yearly global maximum, or about 40,000 visas, plus any unused EB-1 and EB-2 visas. Unskilled employees will be eligible for a maximum of 10,000 visas. An I-140 petition filed by a potential employer and a labor certification are required for all EB-3 petitions.
The three sub-groups under EB-3 are defined as follows in the Code of Federal Regulations:
Persons capable of executing a task that requires at least two years of training or experience are considered “skilled workers.”
Persons with a bachelor’s degree who work in a profession that requires at least a bachelor’s degree are considered “professionals.”
“Other workers” are people who can fill unskilled jobs that require less than two years of training or experience.
EB-4: “Special Immigrants” get a fourth preference.
Fourth-preference petitions are for “special immigrants,” and they account for 7.1 percent of the annual global quota, or slightly less than 10,000 visas. With the exception of overseas government personnel, who must file Form DS-1884, all EB-4 petitions require approval of Form I-360 for Special Immigrants.
The following are examples of special immigrants who fall within this category:
1. Religious workers intending to work as a minister, to work in a professional capacity in a religious vocation, or to work for a tax-exempt organization affiliated with a religious denomination
3. Certain members of the U.S. Armed Forces
5. Certain physicians
6. Certain overseas employees of the U.S. government
7. Employees of the Panama Canal Zone
8. Retired employees of international organizations
9. Certain dependents of international organization employees
10. Afghan and Iraqi translators
For a full list of qualifying EB-4 special immigrants, click here.
Special Issues in Employment-Based Immigration Categories
What exactly is a “priority date,” and how does it effect petitions of various types?
The priority date is the date on which an applicant’s immigration application is filed. There are instances when more competent applicants petition under a category than there are available visa numbers in that category, due to the legislative restriction on visas awarded annually. When this happens, a category is said to be oversubscribed.
Immigrant visas are issued chronologically, according to the dates petitions are filed, until the respective limit is met in overcrowded categories. An applicant’s priority date must be met before an immigrant visa can be issued to them.
In some substantially overloaded categories, such as EB-3, a wait of several years may be required before a priority date is reached.
Consult our visa bulletin for the most up-to-date information on visa number availability and priority dates.