The immigration system provides a way for persons to become permanent residents of the United States based on an offer of employment. This route is particularly useful to persons who do not have close relative in the U.S. who could sponsor them. In this way, a person can be the first in the family “to come to the U.S. and can have the family accompany or follow as immigrants.

Years ago the system for immigration through employment was much simpler it is today. Prior to 1965, for example, a worker could come to the U.S. without his employer showing that a shortage of American workers existed, And fore. 1976, a professional did not need an offer of employment to immigrate, In the early 1960’s the State Department even advertised in newspapers abroad for certain workers to immigrate to U.S. Needless to say, no such Advertising is necessary today.

Most persons coming here as immigrants to work must have an outstanding offer of permanent employment before their application can be proved. In addition, there must in most cases be a test of the labor market and a finding that no U.S. workers are available for the job (a “labor certification”) ‘before the immigrant’s application can be approved. These are two of the main requirements which must be met before most persons can immigrate to the U.S. based on a job.

‘Employment Categories

“In immigration law, there are five” Categories (or “preferences”) for immigration through employment. ‘Immigrants must fall into one of these categories; The first three categories follow a hierarchy. The first employment-based preference is for “priority workers”:1) aliens with extraordinary ability,2) “outstanding professors and researchers, and 3) certain multinational executives and managers. Jabor certification is not required “of priority workers, but in each “sub-group (except the first) workers must have an employer Sponsor them.

‘The second employment preference is for members of the professions holding advanced degrees Of persons of exceptional ability, Applicants here generally must have an employer Sponsor them and a labor certification also is required. The third category is for skilled workers, professionals, and other workers. Both employer Sponsorship and a labor certification are required in category three. Skilled workers are those who will work in a job requiring at least two years training or experience. Professionals should have a baccalaureate degree. Other workers are all those who do not fall into one of the other categories.

Fourth preference is for individuals who are ministers or other religious workers, dependents of juvenile courts, certain employees of the U.S. government and others. Fifth preference is for employment creation immigrants. These are persons who will purchase or establish a business in the U.S., invest $500,000 to. $1 million, and employ at least 10 U.S. workers. Labor certification is not required in either fourth of fifth preference.

Another type of employment category leading to permanent residence is the temporary AA-1 visa lottery. Only persons from these 35 countries are eligible to use this program: Albania, Algeria, Argentina, Austria, Belgium, Bermuda, Canada, Czechoslovakia, Denmark, Estonia, Finland, France, Germany, Gibraltar, Great Britain, Guadeloupe, Hungary, Iceland, Indonesia, Ireland (including Northern Ireland), Italy Japan, Latvia, Liechtenstein, Lithuanian, Luxembourg, Monaco, New Caledonia, Netherlands, Norway, Poland, San Marino, Sweden, Switzerland, and Tunisia.

To apply for a visa through this program, natives of these countries first must be selected by the State Department through a mail-in application process. Selection will be at random. Applicants are limited to one application each and must have a job offer. No labor certification is required. The procedure for the 1992 program will be announced by the State Department sometime in June, 1992, The program will be available for the last time next year (1993).

Procedure

As noted above, the most common employment-based categories require employer sponsorship and a labor certification. These requirements can, unfortunately, be a major roadblock to persons not in the U.S. Conversely, persons who are here as temporary workers (H-1B) or students (F-1) have an advantage in locating employers interested in sponsoring them.

In cases where it is required, the labor certification is the first step in the immigration process. Initially, the employer will file an application with the local job service and recruit to fill the position which will be offered to the alien, The job will be advertised and qualified applicants must be interviewed. If no qualified workers are found for the position, the Department of Labor can certify that there is a shortage of U.S. workers. At this point, the employer can apply to (or “petition”) the Immigration and Naturalization Service to have the alien worker classified in one of the categories outlined above. Finally, when that petition is approved, the alien himself can make his application. If the alien is in the U.S. he applies at the INS for permanent residence, However, if the person is in the U.S. and accepted employment without permission or is not “in status”, or if the person is abroad, he or she must apply at the Department of State for an immigrant visa. This application is done outside the U.S. usually in the person’s home country.

Waiting Periods

The number of persons who can get immigrant visas in any of the employment categories is limited. Under current law, 40,000 immigrant visas in each of the first three categories can be issued in any fiscal year, Other workers in the third category, however, are limited to 10,000 visas each fiscal year. In each of the fourth and fifth Categories 10,000 visas are available. Furthermore, immigrants from any one country are limited to 7% of the total immigrant visas available,

As a result of these limitations, a waiting list has developed for immigrant visas. This is because a person can apply for-a visa only when there is one immediately available, For example, other workers from most countries can apply at this time (May 1992) for immigrant visas only if their labor Certification was started in 1987 (i.¢., have a “priority date” in 1987). Thus, these applicants have waited nearly five years to get immigrant visas or, in technical terms, to become “current”. The waiting list is so long because demand for visas for other workers exceeds the supply.

Fortunately, because so many more visas are allotted to the other employment categories, there is at this time (May 1992) no waiting list for most countries. However, a waiting list could develop for India and Mexico in the future as more and more people are classified in the various employment categories.

When demand for visas cannot be satisfied within the limits described above, the State Department will set a “cut-off date” within a visa category. This means that the category is oversubscribed and only cases having priority dates earlier than the cut-off date can get a visa. Each month the Department revises its waiting list and publishes a chart on immigrant Visa availability in the Visa Bulletin. The Bulletin is available to the public.

Conclusion

This article is offered as a general introduction to the immigration system because interested persons should have available to them basic information on that system, This article, however, is no substitute for professional legal advice. Because each case is different, it is not intended to provide solutions to problems in individual cases,

Article extracted from this publication >> June 5, 1992