| Immigration
Practice
Key Concepts in Employment Immigration
Immigration Based on an Employment Relationship
What Is Labor Certification?
Types of Non-Immigration Visas
for Employment
IMMIGRATING BASED ON AN EMPLOYMENT RELATIONSHIP
United States immigration law divides employment-based immigrants
into the following five basic categories: priority workers, professionals
holding advanced degrees or aliens of exceptional ability, other
workers, special immigrants, and investors.
Priority Workers
This category includes aliens of extraordinary ability in the arts,
sciences, education, business or athletics; outstanding professors
and researchers; and certain multinational executives and managers.
Significantly, no labor certification (see discussion below) is
required for priority workers. Given the relatively large number
of visas available to priority workers, there is currently no backlog
in this category, and individuals who can meet the requirements
of the priority worker category can expect to become lawful permanent
residents in a relatively short period of time.
Professionals Holding Advanced Degrees or Aliens of Exceptional
Ability
As its name suggests, this category is available to professionals
who have advanced degrees (meaning something more than a bachelor's
degree) and to workers of exceptional ability (meaning workers whose
employment will "prospectively substantially benefit the United
States"). In general, a labor certification (see discussion below)
is required for this category, although the requirement can be waived
in cases where such a waiver is deemed by the Attorney General to
be in the national interest.
Other Workers
This category includes professional employees with bachelor's degrees,
skilled workers with two years of training/experience, and certain
unskilled workers. A labor certification is required for this category.
Special Immigrants
This category covers several miscellaneous types of immigrants,
including ministers and religious workers.
Investors
This category permits individuals with at least one million dollars
to invest in a new commercial enterprise in the United States to
obtain permanent resident status. The enterprise in which the investment
is made must employ a minimum of ten United States workers on a
full-time basis. To qualify, the new commercial enterprise must
be: (1) established by the alien; (2) one in which the alien has
invested, or is in the process of investing, at least one million
dollars (or at least $500,000 if the business is in a rural or high
unemployment area); and (3) one which will benefit the United States
economy and create full-time employment for no fewer than ten United
States workers (not including the immigrant or his immediate family).
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WHAT IS A LABOR CERTIFICATION?
Labor certification, also sometimes called alien labor certification,
is in the process by which the Department of Labor tests the labor
market to determine whether US workers are available for a particular
job. By issuing a labor certification, the Department of Labor certifies
that US workers are unavailable for the position and that the employer
is paying the prevailing wage. The purpose of the labor certification
requirement is to balance the need to protect the United States
labor market from competition from foreign workers, with the legitimate
interest of United States employers in hiring foreign workers with
skills which are not available in the domestic work force.
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IMMIGRATION
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