General Practice, Solo & Small Firm DivisionMagazine

Employment-Based Immigration Visas

Employment-based immigrant visa petitions, and the related processes of labor certification and applications for national-interest waivers, can be some of the most difficult and complex cases that immigration lawyers handle. There are three categories of employment-based immigrant visas:

EB-1 priority workers: Workers of extraordinary ability, outstanding professors and researchers, and multinational executives and managers.

EB-2 exceptional ability: Workers who can demonstrate exceptional ability in the arts, sciences, or business under INA § 203(b)(2), and workers of exceptional ability in the arts or sciences under Schedule A, Group II, as codified in INA § 212(a)(5)(A)(ii)(II).

EB-3 skilled workers and other workers: Workers who have at least two years of experience, professionals for whom a baccalaureate degree is required, and "other workers" with less than two years of experience. 8 C.F.R. § 204.5(l).

The EB-1 category, if the alien is successful in meeting its rigorous requirements, does not require labor certification, a lengthy process that involves filing a Form ETA-750 with the state employment service office, which is eventually transferred to a regional office of the U.S. Department of Labor.

The EB-2 and EB-3 categories require labor certification unless, in the case the EB-2 category, the alien has filed an application for a national-interest waiver. This is an exemption from the requirement of a job offer and labor certification, and requires a demonstration (usually with documentary evidence) that the admission of the alien would be in the national interest (INA § 203(b)(2)(B)). This application requires a showing that the contributions of the alien would be "significantly above that for prospective national benefit," but the latter term is not defined.

The INS has sought to raise the bar with respect to national-interest waivers during the past year or so in administrative cases, without issuing new regulations.

In drafting job descriptions for labor certification, immigration lawyers use the Dictionary of Occupational Titles and the Occupational Outlook Handbook. They look for a Specific Vocational Preparation code for a specific position of at least six, which means that one year up to and including two years of experience are required.

The labor certification process can add many months to a case and must be pursued in connection with an EB-3 petition. Therefore, immigration lawyers usually advise their clients to start the process as soon as possible, particularly if the alien is already in the United States on an H-1B (specialty worker) visa, which is normally valid for three years and renewable for an additional three years.

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