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, and the filing of a petition with the United States Citizenship and Immigration Services.

I. Green Cards Obtained Through Employment

1. Employment First Preference: Priority Workers (EB-1)

The EB-1 category applies to professionals and artists who have superior skills in their professions (sciences, arts, business, education, or athletics) and are seeking permanent immigration to the U.S. Through a careful articulation and documentation of the foreign national's extraordinary expertise in his/her field, this strategy represents a gateway for the foreign national holder of O-1, H-1B or L-1 visa, to further apply for his/her temporary work authorization and green card. The major benefit of this category is that Persons of extraordinary ability in the sciences, arts, education, business, or athletics do not need labor certification or a specific employment offer. That means they can file their own petition, rather than through an employer. Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally and Multinational executives and managers, while they do not need labor certification, their prospective employer must provide a job offer and file a petition.

2. Employment Second Preference: Members of Professions Holding Advanced Degrees or Aliens of Exceptional Ability (EB-2): If a person has qualified for an O-1 or H-1B visa, s(he) is usually well-positioned for the EB-2 category, which requires a person to possess an advanced degree as shown by a master's degree or its equivalent in education and work experience. A labor certification and an employer acting as petitioner are required except in one instance (national interest waiver).

Some applicants may qualify for waiver of the labor certification requirement if they can prove that they work in the national interest . The applicant must also demonstrate that he or she is conducting substantial research or making professional contributions to their field of expertise that will benefit at least one national interest of the United States . Cases for applicants whose work has advanced medicine and healthcare, improved the economy, had a favorable impact on the environment, enhanced the strength of the military, or the quality of education in the United States , have been approved. The National Interest Waiver petition can be filed by the alien on his or her own behalf and does not require sponsorship by an employer. The National Interest Waiver is a very complex category and each case must be carefully reviewed.

3. Employment Third Preference: Professionals, Skilled and Other Workers (EB-3) : All Third Preference applicants require labor certification and a petition filed by the prospective employer. There are three subgroups within this category: Professionals with a baccalaureate degree are members of a profession with at least a university bachelor's degree. This is the counterpart to the H-1B Visa . Skilled workers are persons capable of performing a job requiring at least two years' training or experience; and Other workers are those persons capable of filling positions requiring less than two years' training or experience.

4. Labor Certification ( PERM ) : Foreign nationals whose occupation requires a labor certification must secure job offers in the U.S. , and their employers must be willing to sponsor them for permanent residence. A labor certification establishes that there are insufficient U.S. workers who are able, willing, qualified, and available to fill the position being offered to the foreign national at the time and place where he/she is to be employed, and that the employment of the foreign national, if qualified, will not adversely affect the wages and working conditions of similarly employed U.S. workers. Labor certification involves several steps, and takes several years. The employer is required to place advertisements and interview other job candidates. If qualified U.S. workers apply for the position and are rejected by the employer, the Department of Labor will not approve a labor certification application. The employer must also agree to pay the prevailing wage for the position offered as determined by the Department of Labor to be appropriate for that job in the employer's city. The employer may not offer a foreign worker a salary below the prevailing wage. When this labor certification process is successfully completed, then the petitioner may file its petition with the immigration authority. Upon approval of employer's petition for an immigrant visa, the worker in the United States may apply for a green card if immigrant numbers for the specific category are available.

II. Green Cards Obtained Through Family

1. Fiancé Visas: The fiancé visa is for foreign nationals who are engaged to US citizens. After obtaining the visa at a US consulate abroad, the foreign national will be granted a visa that last 90 days. During this time period, it is imperative that the couple get married so they can apply for a green card.

2. Immediate Relative Petitions: Immigrant visas are always immediately available and no quotas are applied when a U.S. citizen files a green card petition on behalf of his/her husband or wife, child under the age of 21, and parent if the U.S. citizen is at least 21 years.

3. Family Preference Categories : The categories below do not automatically have immigrant visas immediately available and quotas apply when a U.S. citizen or a lawful permanent resident files a green card petition for his/her relative.

1. First Preference: unmarried sons and daughters of U.S. citizens . This category refers to the adult children of U.S. citizens or those who have reached the age of 21 years prior to issuance of the green card.

2. Second Preference: spouses and unmarried sons and daughters of lawful permanent residents ;

3. Third Preference: married sons and daughters of U.S. citizens.

4. Fourth Preference: brothers and sisters of U.S. citizens .

5. Green Card and Citizenship Appeals: If the Immigration Officer denies your case for a green card or citizenship, there is an appeal process. Generally an appeal must be made within 30 days of the final decision/denial. Reasons for appeal include an erroneous interpretation of the law and new facts that were not available at the time of the decision.

6. Unlawful Presence: A person will accrue unlawful presence in two ways: 1) being present in the United States after the expiration of the authorized period of stay, and 2) being present in the United States without being admitted or paroled. The period of unlawful presence begins on the date that the Citizenship and Immigration Services or an Immigration Judge make a finding that the person's legal status has been violated.

There are two types of bars to re-entering the United States that apply when a person accrues unlawful presence, depending on the length of the overstay. A three-year bar applies to persons who were unlawfully present in the United States for more than 180 days but less than one year. A ten-year bar applies to persons who were unlawfully present in the US for one year or more. Filing a non-frivolous application for change or extension of status delays the accumulation of unlawful presence with 120 days after the filing.

A waiver of inadmissibility may be obtained for the spouse or son or daughter of a U.S. citizen or of a permanent resident if it can be established that the refusal of the admission would result in extreme hardship to the U.S. citizen or permanent resident spouse or parent.

Nothing on this or associated pages, documents, comments, answers, e-mail, articles or other communications should be taken as legal advice for any individual case or situation. This information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.

LAW OFFICE OF ALEXUS P. SHAM - 2009