Employment Based Immigration
Every fiscal year (October 1st – September 30th), approximately 140,000 employment-based immigrant visas are made available to qualified applicants under the provisions of United States immigration law. Employment based immigrant visas are divided into five preference categories. Certain spouses and children may accompany or follow-to-join employment-based immigrants.
Under certain employment-based categories, to be considered for an immigrant visa, the applicant’s prospective employer or agent must first obtain a labor certification approval from the Department of Labor. Once received (if required), the employer then files an Immigrant Petition for Alien Worker (Form I-140), with the U.S. Citizenship and Immigration Services (USCIS) for the appropriate employment-based preference category. (NOTE: Persons with extraordinary abilities in the Employment First preference category are able to file their own petitions.)
There are five (5) employment based preference categories:
EB-1 preference category includes persons of extraordinary ability, outstanding professors and researchers, and multinational managers or executives.
EB-2 preference category is preserved for persons holding advanced degrees, persons of exceptional abilities, and persons who qualify for national interest waiver.
EB-3 category is preserved for persons who are professionals holding at least a bachelor degree. This category may also be utilized by persons possessing two (2) years or less of qualified job experience or training.
EB-4 category is preserved for special immigrants. The following special immigrants are eligible for the fourth preference visa: Religious Workers, Broadcasters, Iraqi/Afghan Translators, Iraqis Who Have Assisted the United States, International Organization Employees, Physicians, Armed Forces Members, Panama Canal Zone Employees, Retired NATO employees, and Spouses and Children of Deceased NATO employees.
EB-5 preference category is a separate and distinct category of employment based immigrant visas. This category is generally known as EB-5 Immigrant Investor Category. United States Citizenship and Immigration Service administers the Immigrant Investor Program, also known as “EB-5,” created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot immigration program first enacted in 1992 and regularly reauthorized thereafter, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth. All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise: Established after Nov. 29, 1990, or Established on or before Nov. 29, 1990, that is:
- Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
- Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs
Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to a sole proprietorship, partnership (whether limited or general), holding company, joint venture, corporation, business trust or other entity, which may be publicly or privately owned.
This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business. Please note that this definition does not include noncommercial activity such as owning and operating a personal residence.
Please contact our office for more information regarding employment based preference categories. The process of obtaining an immigrant visa through an employment based preference category can be very complex and requires guidance of an experienced New Jersey Immigration Attorney.
Call us today at (732) 596-1235 for an in-person consultation to discuss your questions regarding employment based preference categories. We are ready to answer any and all of your questions. Our office is conveniently located in Woodbridge, New Jersey, next to the Woodbridge Train Station.