Immigration Through Employment Attorney

Immigration through Employment

Currently, there are four categories for granting permanent residence to foreign nationals based upon employment:

EB-1 Priority workers

Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics;
Foreign national that are outstanding professors or researchers;
Foreign nationals that are managers and executives subject to international transfer to the United States.

EB-2 Professionals with advanced degrees or persons with exceptional ability

Foreign nationals of exceptional ability in the sciences, arts or business;
Foreign nationals that are advanced degree professionals;
Qualified alien physicians who will practice medicine in an area of the U.S. which is underserved.

EB-3 Skilled or professional workers

Foreign national professionals with bachelor's degrees (not qualifying for a higher preference category);
Foreign national skilled workers (minimum two years training and experience);
Foreign national unskilled workers.

EB-4 Special Immigrants

Foreign national religious workers;
Employees and former employees of the U.S. Government abroad.

To begin, the foreign national and employer must determine if the foreign national is eligible for lawful permanent residency under one of above categories. Second, most employment categories require that the U.S. employer complete a permanent labor certification (ETA Form 9089) with the Department of Labor (DOL). The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. If certified, the employer will then have to file an immigrant petition, Form I-140 (or Form I-360 for religious workers) with USCIS. Lastly, the foreign national must await immigrant visa availability, as set forth by the Department of State. For a review of the timeframe of visa availability please visit the U.S. Department of State website, or click on the following link: http://travel.state.gov/visa/bulletin/bulletin_1360.html.

Schedule A Occupations

Schedule A is a list of occupations, set forth at 20 CFR 656.15, for which the Department of Labor has determined there are not sufficient U.S. workers who are able, willing, qualified and available. In addition, Schedule A establishes that the employment of aliens in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed.

The occupations listed under Schedule A include:

Group I

Physical Therapists - who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy;
Professional Nurses - the alien (i) has a Commission on Graduates in Foreign Nursing Schools (CGFNS) Certificate, (ii) the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX—RN) exam, or (iii) the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment;
Sciences or arts (except performing arts) - Aliens (except for aliens in the performing arts) of exceptional ability in the sciences or arts including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States. For purposes of this group, the term "science or art" means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill. An alien, however, need not have studied at a college or university in order to qualify for the Group II occupation;
Performing arts - Aliens of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.

An employer shall apply for a labor certification for a Schedule A occupation by filing an ETA Form 9089, in duplicate with the appropriate USCIS Center, not with the Department of Labor.