The first employment preference is for Priority Workers, which includes persons of extraordinary ability in the sciences, arts, education, business, or athletics. Like the proof required to obtain an O-1 nonimmigrant visa or status, extraordinary ability is demonstrated by sustained national or international acclaim and by extensive documentation. A foreign national can demonstrate sustained national or international acclaim and recognition in his field of expertise through, for example, a one-time achievement (e.g., Nobel Peace Prize) or at least three (3) of the following:
- Receipt of lesser nationally or internationally recognized prizes or awards.
- Membership in association in the field for which classification is sought, which requires outstanding achievement of their members, as judged by recognized national or international experts.
- Published material about the person in professional or major trade publications or other major media.
- Participation as a judge of the work of others.
- Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
- Authorship of scholarly articles in the field.
- Artistic exhibitions or showcases.
- Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
- High salary or remuneration in relation to others in the field.
- Commercial success in the performing arts.
Individuals who wish to qualify for an employment-based "Green Card" in this category are not required to have a prospective employer, but they must be entering the United States to continue to work in their chosen field, and they must substantially benefit prospectively the U.S.
The first employment preference for Priority Workers also includes outstanding professors and researchers with a minimum of three (3) years experience in teaching or research who are recognized internationally in an academic discipline. These individuals must be coming for a tenure or tenure-track position, or for a comparable position at a university, institute, or with a private employer to conduct research. No labor certification from the USDOL is required, but there must be an offer of ongoing employment from the petitioning employer.
A foreign national may show that they are an outstanding professor or researcher in an academic field by demonstrating at least two (2) of the following:
- Receipt of major prizes or awards for outstanding achievement.
- Membership in an association which requires outstanding achievement.
- Published material in professional publications written by others about the applicant's work.
- Evidence of the person's participation as a judge of the work of others.
- Evidence of original scientific research.
- Authorship of scholarly books or articles in the field.
Finally, the first employment preference for Priority Workers also includes multinational executives or managers who have been employed abroad in that capacity for one (1) year in the last three (3) years prior to entry with the firm or corporation or other legal entity or an affiliate or subsidiary thereof. The multinational executive or manager must be entering the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive. No labor certification is required in this category.
The second employment preference is for foreign nationals with exceptional ability in the sciences, arts, or business who will substantially benefit the national economy or culture and who are sought by an employer in the United States; and members of professions with advanced degrees.
Exceptional ability in the sciences, arts or business requires a degree of expertise significantly above that ordinarily encountered. In order for a foreign national to demonstrate his exception ability, he must offer proof of three (3) of the following:
- an official academic record showing a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
- at least ten (10) years of full-time experience in the occupation, documented by letters from current or past employers;
- a license to practice the profession or certification for the particular profession or occupation;
- evidence that the foreign national has commanded a salary or other remuneration for services demonstrating exceptional ability;
- membership in professional associations (there is no requirement that the professional associations require outstanding achievement for admission); or
- recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations
A foreign national must have a job offer from a U.S. employer, and an approved labor certification from the USDOL. However, USCIS may waive the labor certification requirement if it is in the national interest to do so. In order to obtain a National Interest Waiver, the foreign national must show:
- that he is seeking employment in an area of substantial intrinsic merit;
- that the proposed benefit is national in scope; and
- that the foreign national will serve the national interest to a substantially greater degree than a U.S. worker with the same minimum requirements.
An alien seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process.
Also included in the second employment preference are members of professions with advanced degrees. An advanced degree means a Masters degree or Bachelor's degree in the field plus five (5) years progressive experience in the profession. Members of the professions includes, but is not limited to, architects, engineers, lawyers, doctors, professors or any other occupation in which a Bachelor's of arts or science degree is required to enter to the profession.
The third employment preference includes professionals with a baccalaureate degree; skilled workers with at least two (2) years of training or experience; and unskilled workers. "Professional" positions require a Bachelor's degree or a foreign degree equivalent. "Skilled worker" positions require a minimum of two (2) years training or work experience. Finally, the "other workers" subcategory is for persons in positions that require less than two (2) years training to engage in the work.
An approved labor certification from the USDOL is required for all third preference employment categories. A national interest waiver is not available for this category. However, a foreign national whose job falls under Schedule A of the USDOL regulations does not have to test the labor market. (Schedule A is essentially a blanket determination by the USDOL for certain jobs that employment of the foreign national in those jobs will not adversely affect the U.S. labor force.)
The fourth employment preference is for "special immigrants", which include, among others, certain religious workers. No approved labor certification is required in this preference, and some special immigrants may petition without an employer.
Finally, the fifth employment preference is for immigrant investors (i.e., employment-creation). This category provides, initially, conditional permanent residence for those foreign nationals who invest $1,000,000.00 in a new commercial enterprise that employs at least ten (10) full-time U.S. workers. The foreign national is made a conditional permanent resident for a two (2) year period, at which time he may make an application to remove the conditions and grant permanent residence. In order to receive unconditional permanent residence, the foreign national must show that he "substantially met the capital investment requirement."
A foreign national may be able to make a smaller investment of $500,000.00 if the investment is in a targeted employment area that includes rural areas with populations of less than 20,000, or locations that have experienced unemployment at 150 percent of the national average.
This guide was developed by Meyers & Meyers, LLP as a resource to help you understand some aspects of Immigration Law, which is very complex. It is not intended to create an attorney-client relationship. We recommend you contact one of our experienced Immigration Attorneys to devise an individualized plan to help you and/or your company achieve your goals. Please contact Meyers & Meyers, LLP at email@example.com for assistance.