BUSINESS WATCH

Employment-Based Visa Retrogression: What is it and how does it affect the employer? By Dustin J. Kessler

 

In view of the recent retrogression of Employment-Based Visa Categories, many employers have inquired as to what this means for the long-term employment of foreign workers and the availability of visas. This article will present the various employment based visa categories, examine the current visa retrogression, and suggest some issues that employers considering applying for employment-based permanent resident status for foreign workers may want to keep in mind. 

 

EMPLOYMENT-BASED VISA PREFERENCE CATEGORIES

 

The Immigration and Nationality Act (“INA”) provides a yearly maximum of 140,000 employment-based immigrant visas which are divided into five preference categories.

 

Employment-Based First Preference (EB-1) -- Workers in this preference category are considered Priority Workers.  Priority Workers receive 28.6 percent of the yearly worldwide limit. Within this preference there are three sub-groups: (1) Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this sub-group 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 Bureau of Citizenship and Immigration Services in the Department of Homeland Security (BCIS), rather than through an employer. (2) Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally.  Applications in this sub-group must have a job offer from a prospective employer who must file the petition on his or her behalf.  And (3) 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. Applicants in this sub-group must be coming to work in a managerial or executive capacity. No labor certification is required for any of the EB-1 classifications.

 

Employment-Based Second Preference (EB-2) -- 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 EB-1 visas.  A job offer is required and the U.S. employer must file a petition on behalf of the applicant.  A labor certification is required unless an exemption is applied for and the position is of such value as to be found to be in the national interest.  There are two subgroups within this category: (1) Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession; and (2) 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-Based Third Preference (EB-3) -- Skilled Workers, Professionals holding baccalaureate degrees and Other Workers receive 28.6 percent of the yearly worldwide limit, plus any unused EB-1 and EB-2 visas.  All such workers require a petition filed by the employer and 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: (1) Skilled Workers are persons capable of performing a job requiring at least two years training or experience; (2) Professionals with a baccalaureate degree are members of a profession with at least a university bachelor's degree; and (3) Other workers are those persons capable of filling positions requiring less than two years training or experience.

 

Employment-Based Fourth Preference (EB-4) -- Special Immigrants receive 7.1 percent of the yearly worldwide limit. There are six subgroups:

 

 

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