Petitions for Alien Workers are filed with Form I-140. These may be subject to availability of numbers, depending on the yearly allocation for these kind visas. The Immigration and Nationality Act provides a quota of employment-based immigrant visas which are divided into five preference categories. In some cases they may require a labor certification from the U.S. Department of Labor (DOL), and the filing of a petition with the Bureau of Citizenship and Immigration Services in the Department of Homeland Security (BCIS).

There are different categories of Employment Based Visas:

Employment First Preference (E1)

All Priority Workers must be the beneficiaries of an approved Form I- 140, Immigrant Petition for Foreign Worker, filed with BCIS. Within this preference there are three sub-groups:

Persons of extraordinary ability in the sciences, arts, education, business, or athletics. 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 BCIS, 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 BCIS; 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 BCIS.

Employment Second Preference (E2)

Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Sciences, or Business. 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 denomination;

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 BCIS. 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.

Labor Certification. 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 BCIS 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 BCIS 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 BCIS can provide further information.

Petition. 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 USCIS. If a necessary labor certification is granted, the employer may then file a Form I-140, Petition for Prospective Immigrant Employee, with the BCIS 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, 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 waivers.

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.