Cite as "AILA InfoNet Doc. No. 98020102 (posted Feb. 1, 1998)"
Tips for U.S. Visas:
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 (DOL), and the filing of a petition with the
Immigration and Naturalization Service (INS).
Employment First Preference (E1)
Priority Workers receive 28.6 percent of the yearly worldwide limit.
All Priority Workers must be the beneficiaries of an approved Form I-
140, Immigrant Petition for Foreign Worker, filed with INS. Within this
preference there are three sub-groups:
Persons of extraordinary ability in the sciences, arts, education,
business, or athletics. Applicants in this category must have extensive
documentation showing sustained national or international acclaim and
recognition in the field of expertise. Such applicants do not have to
have a specific job offer so long as they are entering the U.S. to
continue work in the field in which they have extraordinary ability.
Such applicants can file their own petition with the INS, rather than
through an employer;
Outstanding professors and researchers with at least three years
experience in teaching or research, who are recognized internationally.
No labor certification is required for this classification, but the
prospective employer must provide a job offer and file a petition with
the INS; and
Certain executives and managers who have been employed at least one
of the three preceding years by the overseas affiliate, parent,
subsidiary, or branch of the U.S. employer. The applicant must be
coming to work in a managerial or executive capacity. No labor
certification is required for this classification, but the prospective
employer must provide a job offer and file a petition with the INS.
Employment Second Preference (E2)
Professionals Holding Advanced Degrees, or Persons of Exceptional
Ability in the Arts, Sciences, or Business receive 28.6 percent of the
yearly worldwide limit, plus any unused Employment First Preference
visas. All Second Preference applicants must have a labor certification
approved by the DOL, or Schedule A designation, or establish that they
qualify for one of the shortage occupations in the Labor Market
Information Pilot Program (later). A job offer is required and the
U.S. employer must file a petition on behalf of the applicant. Aliens
may apply for exemption from the job offer and labor certification if
the exemption would be in the national interest, in which case the alien
may file the petition, Form I-140, along with evidence of the national
interest. There are two subgroups within this category:
Professionals holding an advanced degree (beyond a baccalaureate
degree), or a baccalaureate degree and at least five years progressive
experience in the profession; and
Persons with exceptional ability in the arts, sciences, or business.
Exceptional ability means having a degree of expertise significantly
above that ordinarily encountered within the field.
Employment Third Preference (E3)
Skilled Workers, Professionals Holding Baccalaureate Degrees and Other
Workers receive 28.6 percent of the yearly worldwide limit, plus any
unused Employment First and Second Preference visas. All Third
Preference applicants require an approved I-140 petition filed by the
prospective employer. All such workers require a labor certification,
or Schedule A designation, or evidence that they qualify for one of the
shortage occupations in the Labor Market Information Pilot Program.
There are three subgroups within this category:
Skilled workers are persons capable of performing a job requiring at
least two years' training or experience;
Professionals with a baccalaureate degree are members of a
profession with at least a university bachelor's degree; and
Other workers are those persons capable of filling positions
requiring less than two years' training or experience.
Employment Fourth Preference (E4)
Special Immigrants receive 7.1 percent of the yearly worldwide limit.
All such applicants must be the beneficiary of an approved I-360,
Petition for Special Immigrant, except overseas employees of the U.S.
Government who must use Form DS-1884. There are six subgroups:
1) Religious workers coming to carry on the vocation of a minister of
religion, or to work in a professional capacity in a religious vocation,
or to work for a tax-exempt organization affiliated with a religious
2) Certain overseas employees of the U.S. Government;
3) Former employees of the Panama Canal Company;
4) Retired employees of international organizations;
5) Certain dependents of international organization employees; and
6) Certain members of the U.S. Armed Forces.
Employment Fifth Preference (E5)
Employment Creation Investors receive 7.1 percent of the yearly
worldwide limit. All applicants must file a Form I-526, Immigrant
Petition by Alien Entrepreneur, with the INS. To qualify, an alien must
invest between U.S. $500,000 and $1,000,000, depending on the employment
rate in the geographical area, in a commercial enterprise in the United
States which creates at least 10 new full-time jobs for U.S. citizens,
permanent resident aliens, or other lawful immigrants, not including the
investor and his or her family.
A person whose occupation requires a labor certification must have
prearranged employment in the United States.
Individual Labor Certification
The applicant must complete DOL Form ETA-750B, Statement of
Qualifications of Alien, and send this completed form to the prospective
employer who completes Form ETA-750A, Application for Alien Employment
Certification, Offer of Employment. The prospective employer submits
both forms to the local office of the State Employment Service in the
area in the United States where the work will be performed. The
employer will then be notified by the appropriate regional office of the
DOL of its approval or disapproval.
Schedule A Designation
The Department of Labor has made a schedule of occupations for which it
delegates authority to the INS to approve labor certifications.
Schedule A, Group I, includes physical therapists and nurses. Schedule
A, Group II includes aliens of exceptional ability in the sciences and
arts (except performing arts). To apply for Schedule A designation, the
employer must submit a completed, uncertified Form ETA-750 in duplicate
to the INS along with the I-140 petition.
Labor Market Information Pilot Program
The Immigration Act of 1990 provides for the DOL to establish a Labor
Market Information Pilot Program which will define up to ten
occupational classifications in which there are labor shortages. For
aliens within a listed shortage occupation, a labor certification will
be deemed to have been issued for purposes of an employment-based
immigrant petition. The INS can provide further information.
All intending immigrants who plan to base their immigrant visa
application on employment in the United States must obtain an approved
immigrant visa petition from the INS. If a necessary labor
certification is granted, the employer may then file a Form I-140,
Petition for Prospective Immigrant Employee, with the INS for the
appropriate employment-based preference category.
VISA INELIGIBILITY / WAIVER
The immigration laws of the United States, in order to protect the
health, welfare, and security of the U.S., prohibit the issuance of a
visa to certain applicants. Examples of applicants who must be refused
visas are those who: have a communicable disease, or have a dangerous
physical or mental disorder; have committed serious criminal acts; are
terrorists, subversives, members of a totalitarian party, or former Nazi
war criminals; have used illegal means to enter the U.S.; or are
ineligible for citizenship. Some former exchange visitors must live
abroad for two years. Physicians who intend to practice medicine must
pass a qualifying exam before receiving immigrant visas. If found to be
ineligible, the consular officer will advise the applicant of any
OTHER IMPORTANT INFORMATION
Documents for Visa Application
All applicants must submit certain personal documents such as passports,
birth certificates, police certificates, and other civil documents, as
well as evidence that they will not become public charges in the United
States. The consular officer will inform visa applicants of the
documents needed as their applications are processed.
Before the issuance of an immigrant visa, every applicant, regardless of
age, must undergo a medical examination. The examination will be
conducted by a doctor designated by the consular officer. The applicant
must pay for the examination.
The cost of each formal immigrant visa application is US$260 for
application and US$65 for issuance. Fees must be paid for each intending
immigrant, regardless of age, and are not refundable. Local currency
equivalents are acceptable. Fees should not be sent to the consular
office unless requested specifically. The INS charges additional fees
for filing petitions.
Whenever there are more qualified applicants for a category than there
are available numbers, the category will be considered oversubscribed,
and immigrant visas will be issued in the chronological order in which
the petitions were filed until the numerical limit for the category is
reached. The filing date of a petition becomes the applicant's priority
date. Immigrant visas cannot be issued until an applicant's priority
date is reached. In certain heavily oversubscribed categories, there
may be a waiting period of several years before a priority date is
reached. For the latest priority dates, call (202) 663-1541.
Since no advance assurances can be given that a visa will be issued,
applicants are advised not to make any final travel arrangements, not to
dispose of their property, and not to give up their jobs until visas
have been issued to them. An immigrant visa can be valid for four
months from issuance date.
With few exceptions, a person born in the United States has a claim to
U.S. citizenship. Persons born in countries other than the U.S. may
have a claim, under United States law, to U.S. nationality if either
-- Born or naturalized in the U.S., or
-- A U.S. citizen at the applicant's birth.
Any applicant believing he or she may have a claim to United States
citizenship should not apply for a visa until his or her citizenship has
been determined by the consular office.
Further information about the specific categories of immigrant visas
listed above and which category a potential employee may fall under can
be obtained from your local INS office. Questions on the visa
application procedures at the American consular office overseas should
be addressed to that consular office.
UNITED STATES DEPARTMENT OF STATE
Bureau of Consular Affairs