EMPLOYMENT SPONSORED IMMIGRATION
1. The Employment Based First Preference
(EB1) or Priority workers comprise of
the following three categories which are
listed below as A B & C:
A. "Extraordinary Ability"
(Employer - Labor Certification not required)
This category requires that the candidate
have expertise in business, sciences, athletics
or arts, which is demonstrated by national
or international acclaim, and well documented
achievements. The candidate must be entering
the US to continue work in his/her area
of extraordinary ability, and this entry
must prospectively benefit the US
B. "Outstanding Professor or Researcher"
(Employer required - Labor Certification
not required) requires that the candidate
be: i. recognized internationally in a specific
academic area, and
ii. possess at least three years of teaching
or research experience in the academic area;
and
iii. seek to enter the United States for
:
a. tenure or tenure-track position within
a university or other institution of higher
education to teach in the academic area;
or
b. comparable position with a university
or other institution of higher education
to conduct research in the area; or
c. 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.
C. "Multinational Executive or Manager"
(Employer required - Labor Certification
not required) requires that the candidate
have been employed abroad in that capacity
during at least one of the 3 years preceding
his/her application for admission into the
US as a priority worker. He/she must enter
the US to be employed as an executive or
manager for the same firm, corporation or
legal entity or a subsidiary or affiliate
of the entity that employed him/her abroad.
2. The Employment Based Second Preference
(EB2) Professionals includes those with
advanced degrees or persons of "exceptional
ability". These visas are reserved
for qualified immigrants who are:
A. members of the professions holding
advanced degrees (Employer required
- Labor Certification required - Unless
work is in National Interest) or their equivalent,
or
B. those who are of exceptional ability
(Employer required - Labor Certification
required - Unless work is in National Interest)
in the sciences, arts, or business, who
will benefit the national economy, cultural
or educational interests of the US and whose
services are sought by an employer in the
US A Bachelor's degree and five years of
professional experience is considered the
equivalent of an advanced degree. The mere
possession of a degree or license does not
constitute sufficient evidence of exceptional
ability. Unlike a priority worker, a person
may immigrate to the US under the above
category only after his/her employer has
obtained a labor certification (LC) for
the job. In some circumstances the Immigration
and Naturalization Service (INS) may waive
the requirements of a job offer and labor
certification if the work is deemed to be
in the "national interest". The
classification of those who can qualify
in the national interest and obtain a waiver
of the labor certification has been explained
in the section on national interest waivers
separately at the web site of the Law Office
of Theodore Behlendorf.
3. The Employment Based Third Preference
(EB3) (Employer required - Labor Certification
required) comprises of skilled workers,
professionals or other workers which is
explained below. A qualified "skilled
worker" is a person capable of performing
a job which requires at least two years
of training or experience, for which qualified
workers are not available in the United
States. To qualify as a "professional",
an individual needs to be a professional
with a Baccalaureate degree. "Other
workers" are those who are considered
unskilled labor, not of a temporary or seasonal
nature, for which qualified workers are
not available in the United States. Skilled
workers, professionals and other workers
are required to file and obtain a labor
certification from the US Department of
Labor and be sponsored by their employers
for their jobs.
4. The Employment Based Fourth Preference
(EB4) (Employer required - Labor Certification
required) is comprised of "Special
immigrants" which is explained in the
following paragraph: Immigrants in this
category include religious ministers, long
time employees of the US government employed
abroad, and some investors and physicians
who have resided in the US for a number
of years.
IMMEDIATE RELATIVES AND FAMILY PREFERENCE
Immediate relatives of US
citizens are : spouses, children and parents
of US citizens - unmarried children and
under 21 years of age, and, in the case
of a parent of a US citizen, the petitioning
son or daughter being at least 21 years
of age.
The definition of immediate relative includes
widows of US citizens provided that the
alien was the spouse of the citizen for
at least 2 years prior to the citizen's
death and was not legally separated from
the citizen at the time of his/her death.
IMP : The petition for permanent residence
has to be filed within 2 years after the
citizen's death and before re-marriage.
The advantage of qualifying as an immediate
relative is that there is no numerical limitation
or backlogs for sponsorship.
The Family preference categories are as
follows:
1st Pref. - unmarried sons and daughters
of US citizens,
2nd Pref. - spouses and unmarried
sons and daughters of lawful permanent residents,
3rd Pref. - married sons and daughters
of US citizens
4th Pref. - brothers/sisters of US
citizens.
At present the waiting time frames for the
4th preference siblings of US citizens is
approximately 10-12 years!! The Visa Bulletin
posted in the Updated Section of our web
site which is released each month by the
US State Department provides the cut off
dates in each of the categories we have
outlined above.
MARRIAGE
Marriages within the United States
The US citizen needs to submit a visa
petition to the appropriate INS Regional
Service Center to prove that the marriage
was not entered into for the for the sole
purpose of obtaining a green card. The burden
is on the parties to establish the bona
fides of the marriage.
The foreign-born spouse should submit an
application for adjustment of status - an
application for a green card, a completed
fingerprint chart, green card type photographs
and numerous other INS forms, plus INS filing
fees.
Effective since November 29, 1996, the application
is now submitted to the INS Regional Service
Center for processing.
The INS schedules an interview somewhere
between two and 14 months depending on which
INS office the application was filed. If
the wait exceeds 90 days, chances are that
the employment authorization document (EAD)
or work card and the travel document will
be issued in a matter of a few weeks. The
Regional Service Centers are taking on average
3 months to process the EAD. If the interview
occurs within 90 days, it is possible that
no work or travel permit will be issued.
Marriages outside the United States
The foreign-born spouse usually must
remain in his/her country until he/she obtains
the green card.
The citizen spouse submits a visa petition
to either the appropriate INS office or
directly to the US Embassy or Consulate
in the country where the foreign-born spouse
lives.
Once the visa petition has been approved,
the foreign-born spouse will receive a packet
from the National Visa Center (NVC). The
packet will inform the foreign-born spouse
of the various documents required at the
immigrant visa interview abroad and the
packet will also include documents requesting
biographic data which need to be completed
and forwarded to the US Embassy or Consulate
abroad. The process can take three to six
months.
In order to avoid a long separation, sometimes
the spouses return to the US after marriage
and file the necessary applications only
after they are both in the United States.
If the foreign-born spouse is able to enter
the US, the INS will not deny his/her application
for a green card. It is common for the INS
to stop the foreign-born spouse at the border
and exclude him/her from entering the US
as an intending immigrant. Since spouses
of US citizens are considered "immediate
relatives" under immigration laws,
they are exempt from all numerical quota
limitations.
CONDITIONAL RESIDENCE
If the marriage is less than two years old
when the foreign-born spouse becomes a permanent
resident, the green card will expire after
a two-year period. Both spouses must submit
a joint petition to remove the two-year
condition within the 90-day period immediately
preceding the end of the two year period.
If the marriage has terminated by reason
of divorce, death of the citizen spouse
or spousal abuse, the foreign-born spouse
may apply for a waiver of the joint petition
requirement.
INVESTMENT
Individuals investing a minimum of
$1 million, or in certain circumstances,
$500,000, in a new commercial enterprise
employing at least 10 US workers (exclusive
of the immigrant, his/her spouse and sons
and daughters) will qualify for this classification
of the visa. If this investment is made
in either a rural area or in an area experiencing
high unemployment, the minimum amount required
for the investment is $500,000. Investor
visas for those investing in rural or high
unemployment areas is limited to a maximum
of 3,000 every year.
LOTTERY
These visas will be distributed among
six geographical regions. A greater proportion
of visas will go to those regions that have
lower immigration rates in the US The regions
are:
Africa : All countries on the continent
of Africa and adjacent islands.
Asia : From Israel to all North Pacific
Islands, including Indonesia.
Europe : From Greenland to Russia -
includes all countries of the former Soviet
Union.
North America : Includes only one
qualified country this year (1998), The
Bahamas.
Oceania : Includes Australia, New
Zealand, Papua New Guinea, and all countries
and islands in the South Pacific.
South America : Includes Central
America, Mexico and the Caribbean countries.
Individuals born in countries that have
significant numbers of immigrants to the
United States are considered "high
admission'' and are not eligible for the
program. "High admission'' countries
are defined as those from which the United
States has received 50,000 or more immigrants
during the last five years in the immediate
relative, or family or employment preference
categories. For 1998, "high admission''
countries are:
China (mainland and Taiwan), INDIA, The
Philippines, Vietnam, South Korea, United
Kingdom and dependent territories (except
Hong Kong and Northern Ireland), Canada,
Mexico, Jamaica, El Salvador, Colombia,
and The Dominican Republic.
Requirements :
In addition to being born in a qualifying
country, applicants must have either a high
school education or its equivalent, or within
the past five years have two years of work
experience in an occupation that requires
at least two years of training or experience.
Only one entry for each applicant must be
submitted during the registration period.
Duplicate or multiple entries will disqualify
individuals from registration for this program.
Entries received before or after the specified
registration dates regardless of when they
are postmarked and entries sent to an address
other than one of those indicated below
are all void. All entries received during
the registration period will be individually
numbered and entries will be randomly selected
by computer without regard to the time of
receipt. Only successful registrants will
be notified by mail at the address listed
on their entry.
No outside service can improve an applicant's
chance of being chosen or guarantee an entry
will win and any service that claims it
can, is promising something it cannot deliver.
Outside agencies can only help in the proper
filing of the application - paying attention
to the details involved.
Persons who think they have been defrauded
by a United States based company/consultant
in connection with the Diversity Visa Lottery
may wish to contact their local consumer
affairs office or the National Fraud Information
Center at 1-800-876-7060.
OTHER AVENUES
There are some other avenues available
for immigration, for example, the asylum/refugee
petition and the suspension of deportation
which have undergone and are undergoing
substantial changes pursuant to recent laws
becoming effective from April 1, 1997.
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