GREEN CARDS THROUGH EMPLOYMENT: AN OVERVIEW

Prior to the Immigration Act of 1990, the law allowed for the admission of 54,000 immigrants annually based upon offers of employment as professionals (3rd preference category) or as skilled or unskilled workers (6th preference category).

In general, before a preference petition on behalf of a prospective immigrant could be submitted to the U.S. Immigration and Naturalization Service (INS), an employer had to obtain an alien labor certification issued by the U.S. Department of Labor. This labor certification represented a determination by the Secretary of Labor that no qualified U.S. workers were ready, willing and able to fill the job, and that the employment of an immigrant would not adversely affect the wages and working conditions of U.S. workers.

The 1990 law replaced the former statutory scheme with a number of new categories. The 140,000 visas allocated to employment- sponsored immigration are distributed as follows:

(1) Priority workers (28.6% of the worldwide level of visas, or approximately 40,000 visas PLUS unused special immigrant and investor visas, if any)

Priority workers include (A) persons of extraordinary ability, (B) outstanding professors and researchers, and (C) certain executives and managers of multinational corporations.

A person's extraordinary ability in the arts, sciences, business, education, or athletics must be demonstrated by sustained national or international acclaim, and his achievements must have been recognized in his field through extensive documentation. He must be entering the U.S. to continue work in his area of extraordinary ability, and his entry must substantially benefit prospectively the U.S.

To qualify as an outstanding professor or researcher, a person must (1) be recognized internationally as outstanding in a specific academic area; (2) have at least three years of teaching or research in the academic area; and (3) seek to enter the U.S. for (a) a tenured or tenure-track position within a university or other institute of higher education to teach in the academic area; (b) a comparable position with a university or other institute of higher education to conduct research in the area; or (c) a comparable position to conduct research in an area with a department, division, or institute or a private employer, if the department, division, or institute employs at least three persons full-time in research activities and has achieved documented accomplishments in an academic field.

A multinational executive or manager must have been employed abroad as such during at least one of the three years preceding his application for priority worker classification and admission into the U.S. as a priority worker. He must be entering the U.S. to be employed as an executive or manager for the same firm, corporation or legal entity (or to a subsidiary or affiliate thereof) that employed him abroad.

(2) Professionals with advanced degrees and persons of exceptional ability (28.6% of the worldwide level of visas, or approximately 40,000 visas PLUS unused visas from priority worker category, if any)

These visas are reserved for qualified immigrants who are (1) members of the professions holding advanced degrees or their equivalent, or (2) those who are of exceptional ability in the sciences, arts, or business. It is required that such immigrants will substantially benefit prospectively the national economy, cultural or educational interests of the U.S. and that their services are sought by an employer in the U.S.

In determining whether a person is of exceptional ability, the possession of a degree or license does not, by itself, constitute sufficient evidence of such ability.

Unlike a priority worker, a person may immigrate to the U.S. under this category only after his employer has obtained a labor certification for his job. However, where it is deemed to be in the national interest, the Immigration Service may waive the requirements of a job offer and labor certification.

A person holding a bachelor's degree and five years of professional experience will be considered to possess the equivalent of an advanced degree for purposes of this section of law.

(3) Skilled workers, professionals and other workers (28.6% of the worldwide level of visas, or approximately 40,000 visas PLUS unused visas from the two preceding categories, if any)

A qualified skilled worker is a person capable of performing an occupation which requires at least two years of training or experience, not of a temporary or seasonal nature, for which qualified workers are not available in the U.S.

A person is a qualified professional under this category if he holds a baccalaureate degree and is a member of the professions.

Other workers are those who are capable of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the U.S.

Skilled workers, professionals and other workers may immigrate to the U.S. only after their employers obtain labor certifications for their jobs. Unskilled workers are limited to no more than 10,000 visas per year under this category. This limitation has resulted in dramatically increased waiting times for housekeepers and other unskilled workers.

(4) Special immigrants (7.1% of the worldwide level of visas, or approximately 10,000 visas)

A variety of immigrants in this category include religious ministers, long time employees of the U.S. government employed abroad, certain investors and physicians who have resided in the U.S. for a number of years and many other categories of persons.

Prior law did not provide for numerical restrictions upon special immigrants. The act imposed a ceiling of 10,000 visas annually for special immigrants. Two types of special immigrants (immigrants, lawfully admitted for permanent residence, who are returning from a temporary visit abroad, and immigrants who are former U.S. citizens) are exempt from this limitation.

The act adds several new categories of special immigrants: (1) religious workers for bona fide, tax-exempt, non-profit religious organizations in the U.S. (5,000 annual numerical limitation), (2) certain employees at the U.S. Consulate in Hong Kong, and (3) certain aliens who have been declared dependents of juvenile courts in the U.S.

(5) Investors - See Green Cards Through Investment

Labor Certification

Any person is permitted to submit to the Department of Labor documentary evidence bearing on or challenging the statements made in an application for certification on file with the Secretary of Labor. This evidence may include such items as information on available workers, information on wages and working conditions, and information on the employer's failure to meet terms and conditions with respect to the employment of alien workers and co-workers.

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