Immigration Basics

By: James Stillwaggon and Aida Diaz-Silveira, Alvarez Arrieta & Diaz-Silveira LLP, Miami, Florida

The primary objectives of US immigration law have long been to foster family unity and to ameliorate shortages of skilled workers in the US. As a result, two predominant categories of immigration to the US have emerged:

· Family-sponsored immigration; and

· Employment-based immigration.

The first step for an intending immigrant is to find an immigration category for which he or she qualifies. Except for immediate family members of US citizens and the most exceptional employees, the immigration process often takes many months and sometimes years to complete.

This note will briefly describe the most commonly used Employment-based immigrant visa categories and usual qualifying procedures.

Employment-Based Immigration

Generally, employment-based immigration is possible for persons in occupations that US authorities have decided are in short supply and/or desirable. There are now four preference classifications for employment-based immigration, with a fifth classification available to persons who make significant investments in the US resulting in employment opportunities for US workers.

The first three employment-based immigration classifications span the full spectrum of occupations from world-class professionals to unskilled workers. One of the common threads running through them is that immigration is possible only if American workers will not be displaced as a result. US authorities have decided that immigrants in the first preference classification need not prove that they will not displace American workers. In most cases, employers wishing to sponsor foreign workers as immigrants must prove that no American workers will be displaced through the Labor Certification process, which is summarized below. However, Labor Certification is not necessary for immigrants with exceptional ability in the science or arts, or those in occupations identified as being in particularly short supply by the US Department of Labor.

In addition to proving that American workers would not be displaced, employment-based immigrants ordinarily must have a firm offer of full-time employment from the sponsoring US employer. Finally, the US government has established a standard procedure for distributing employment-based immigration visas. That procedure is summarized below.

The first employment-based classification consists of priority workers, and includes persons of extraordinary ability, outstanding professors and researchers, and executives and managers of international corporations. The standards for these categories are stringent and must be established by documentary proof required by the regulations.

The second classification of employment-based immigration consists of persons who are members of the professions holding advanced degrees, and persons of exceptional ability in the sciences, arts and business. Typically, a Labor Certification from the US Department of Labor stating that the employment of the immigrant in the US will not displace US workers is a pre-requisite to filing an immigrant petition in this classification. Briefly, as part of the Labor Certification process, the US employer must recruit for qualified workers. That usually involves newspaper advertisements and posting the opening at the job site. The Department will issue the requested Labor Certification only if no qualified US workers come forward. The Labor Certification process often takes many months to complete and must be completed before an immigrant petition is filed with the CIS. Immigrants in this second classification may obtain an exemption from the Labor Certification requirements by proving that it would be in the US National Interest to do so. To establish National Interest, applicants must prove that they will improve the US economy, the wages and working conditions of US workers, education, health care, affordable housing or the environment. An immigrant may also establish National Interest by presenting a request for the immigrant’s permanent presence in the US by an interested US governmental agency.

The third employment-based immigrant classification consists of professionals, skilled workers and other workers. Most immigrants falling into this classification must complete the time-consuming Labor Certification process.

The fourth employment-based immigration classification is available for religious workers. To qualify, a religious worker must first belong to a religious denomination having a bona fide non-profit religious affiliate in the US for at least two years. In addition, the person must seek entry into the US solely to work as a minister in his or her religious denomination or as a professional employee of the religious organization or a bona fide organization affiliated with the religious organization.

Finally, the fifth employment-based immigration classification consists of employment creation immigrants. To qualify for this classification, an immigrant must be coming to the US for the purpose of engaging in a new commercial enterprise established by the immigrant, in which the immigrant has invested at least US$1 million and which will create at least ten full-time jobs for US workers. The minimum investment will be reduced to US$500,000 if the business is established in certain high unemployment areas. Currently, there are several proposals in Congress to increase these investment threshold amounts and to strengthen government oversight.

All of these categories can be subject to substantial quota delays which can be monitored through the State Department Visa Bulletin, mentioned above.