IMMIGRATING TO THE UNITED STATES: EMPLOYMENT-BASED by ALLEN E. KAYE, ESQ. and ...

116 Pages·2014·5.97 MB·English

IMMIGRATING TO THE UNITED STATES:

EMPLOYMENT-BASED

by

ALLEN E. KAYE, ESQ.

Law Offices of Allen E. Kaye, P.C.

New York City

and

DEBORAH J. NOTKIN, ESQ.

Barst Mukamal & Kleiner LLP
New York City

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EMPLOYMENT-BASED VISA PETITIONS

Deborah J. Notkin
Barst Mukamal & Kleiner LLP
New York, NY

I. Employment-based Visa Petitions which are Labor Certification Exempt

1. Extraordinary Ability Aliens – Eb-1 Category
Aliens of extraordinary ability are defined by INA § 203(b)(l)(a) as those
who can show that they have "extraordinary ability in the sciences, arts,
education, business or athletics which has been demonstrated by sustained
national or international acclaim and whose achievements have been
recognized in the field through extensive documentations.
The INS regulations pertaining to extraordinary ability aliens are found at
8 CFR §204.5(h).
The documentary requirements to establish extraordinary ability found at
8 CFR § 204.5(h)(3) are as follows:
Evidence of a major internationally recognized award or evidence
satisfying at least three of the following ten standards plus an additional
miscellaneous option:
(a) receipt of lesser nationally or internationally recognized
prizes or awards for excellence;
(b) membership in associations in the field which demand
outstanding achievement of their members;
(c) published material about the alien;
(d) evidence that the alien is a judge of the work of others;
(e) evidence of the alien's original contributions of major
significance to the field;
(f) authorship of scholarly articles;
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(g) display of the alien's work at artistic exhibitions or
showcases;
(h) evidence the alien has performed in a leading or critical
role for organizations that have a distinguished reputation;
(i) evidence that the alien is paid a lot in relation to others in
the field;
(i) evidence of commercial success in the performing arts, or
(k) other comparable evidence if the above standards do not
readily apply to the field.
2. Outstanding Professors and Researchers – Eb-1
Outstanding Professors and Researchers are defined by INA §
203(b)(1)(B) as those filling three requirements:
(a) Internationally recognized as outstanding in a specific
academic area;
(b) Having a minimum of three years of experience in teaching
or research in the area of expertise;
(c) Entering the U.S. to fill one of the following job offers:
1) a tenured or tenure track teaching position
within a university or institution of higher
learning.
2) a comparable indefinite research position
within a university or institution of higher
learning.
3) a comparably permanent position to conduct
research of a private employer who has at
least three full time researchers and has
achieved documented accomplishments in
an academic field.
The INS regulations pertaining to outstanding professors and researchers are
found at 8 CFR § 204.5(i ).
The documentary requirements to establish international recognition as
outstanding are as follows:
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1. receipt of major prizes or awards;
2. membership in associations which require outstanding
achievements;
3. published material in professional journals written by others about
the alien's work;
4. evidence that the alien participates as a judge in the work of others;
5. original scientific or scholarly research contributions to the field;
6. authorship or scholarly books or articles in journals with
international circulation in the field.
As cited above, the statute requires outstanding professors and researchers to have at least
three years of outstanding research or teaching experience. The regulations at 8 CFR
§ 204.5(i)(3)(ii) allow for fare circumstances where the alien has recognized, outstanding
research achievements or full responsibility for classes taught prior to attaining an
advanced degree. The advanced degree must be awarded before a petition under this
subcategory can succeed.
An advanced degree is generally defined as being above a baccalaureate degree, although
the regulations under 8 CFR § 204.5(i) are silent on this. Master's degree holders may
qualify as well as those holding Ph.ds.
3. Certain Multinational Executives and Managers – Eb-1
The requirements for this category closely track those for L-1A intracompany
transferees. Authorities are INA § 203(b)(1)(C) and 8 CFR § 204.5(j).
4. National Interest Waiver of Job Offer and Labor Certification – Eb-2
Aliens who are members of the professions holding advanced degrees or aliens of
exceptional ability in the sciences, arts or business are eligible for an immigrant
visa based on the Eb-2 category pursuant to INA § 203 (b)(2). Subparagraph (A)
requires an offer of employment by a U.S. employer. However, a waiver of this
offer of employment is provided for in Subparagraph (B) when it is deemed to
be in the national interest.
The Federal Regulations further clarify the scope of this waiver to include
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Waiver of the labor certification requirement normally required for employment
based visa petitions under INA§ 203(b)(2)(A). 8 CFR § 204.5(k)(4)(ii).
The documentary requirements to show that the alien has an advanced degree are
found at 8 CFR § 204.5(k)(3)(i):
a) An official academic record showing that the alien possesses a
U.S. professional or academic degree above that of a baccalaureate or
the foreign equivalent degree. 8 CFR § 204.5(k)(3)(ii)(A). (Subpart A)
Or
b) An official academic record showing a U.S. Baccalaureate
Degree or a foreign educational equivalent and evidence from current
and/or past employers showing five years of progressive work
experience following the attainment of the baccalaureate. (Subpart B).
Exceptional ability in the sciences, arts or business requires "a degree of expertise
significantly above that ordinarily encountered in the sciences, arts or business." 8
CFR § 204.5(k)(2).
The documentary requirements to show that an alien has exceptional ability in the
sciences, arts or business is found at 8 CFR § 204.5(k)(3)(ii). The petition must
be accompanied by at least three or six types of evidence.
a) An academic degree, diploma or certificate in the area of
exceptional ability from a college, university or other
educational institution;
b) Letters from current or past employers documenting that
the alien has at least ten years of full time experience in the
occupation;
c) A professional license or certification;
d) Evidence that the alien has received a salary commensurate
with exceptional ability in the occupation;
e) Evidence of membership in professional associations;
f) Evidence of recognition for achievements in the field of
peers, governmental bodies or professional or business
organizations.
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If the above six criteria do not apply, comparable evidence may be submitted. 8 CFR §
204.5(k)(3)(iii).
The regulations do not provide guidance on the type of documentation necessary to
satisfy "national interest" for the purposes of the waiver. What qualifies as national
interest has been the subject of a substantial number of Administrative Appeal cases and a
frequent topic at legal seminars on Immigration and Nationality Administrative Appeals.
In 1998, a precedent case New York State Department of Transportation, established
stringent criteria to qualify for the national interest waiver. These criteria are (1) the
person seeks employment in an area of substantial intrinsic merit, (2) the benefit will be
national in scope; and (3) the national interest would be adversely affected if a labor
certification were required.
5. Schedule A - Eb-2 or Eb-3
This is a category of designated occupations which are deemed to be shortage occupations
thereby being pre-certified. At present, only professional nurses and physical therapists
are on Schedule A, Group I and Foreign Nationals of Exceptional Ability in the Arts and
Sciences (including the performing Arts) are also included in Schedule A, Group II.
II. Employment Based Visa Petitions Requiring Labor Certification
1. Eb-2 Category - Advanced Degree and Exceptional Ability Aliens. If a
national interest waiver is not attached to an Eb-2 petition pursuant to INA §
203(b)(2), a labor certification must accompany the petition.
2. Eb-2 Beneficiaries – The requirements to qualify for Eb-2 advanced
degree professionals are found at 8 CFR § 204.5(k)(3)(i) as documented
above under the section for National Interest Waiver. The requirements to
qualify for Eb-2 exceptional ability are found at 8 CFR § (k)(3)(ii) as
documented under the section for National Interest Waiver.
3. Eb-3 Category – Skilled workers, professionals and other workers – INA §
203(b)(3) with the exception of Schedule A, Group I, all require a labor certification.
Skilled workers are defined as those performing skilled labor requiring at least two years
of experience or training. 8 CFR § 204.5(l)(2) defines qualifying training to be relevant
post-secondary education.
Professional is defined as one who hold at least a U.S. baccalaureate degree or
equivalent and is a member of the professions. 8 CFR 204.5(l)(2).
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Other Workers - Defined under INA§203 (b)(3) This subcategory
encompasses all cases where the job requirements specified on the labor
certification are less than a baccalaureate degree or two years
experience or post-secondary school training.
This is the least desirable category because only 10,000 visas are allowed
annually in the category worldwide, usually resulting in a long wait of many
years to obtain an immigrant visa. 8CFR 204.5(l)(3)(D)
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ALLEN E. KAYE
Trinity Building
l 11 Broadway, Suite 1304
New York, New Vork !0006
Phone: [phone] Fax: [phone]
Em a ii: ~llen EKa vc(a!,1tYS:X!'.&Q!Q
\Vcbsik: www.lrnyevisalaw.com
ALLEN E. KAY E, whose practice is limited to Irnmigration and Naturalization
Law matters, has practiced United States immigration, naturalization, visa and
consular law for the past 35 years. He is a graduate of Columbia University Law
School (J.D.) and New York University Law School (LL.M.).
A nationally recognized expert in the field of U.S Immigration and Naturalization
Law, Allen E. Kaye is a past National President of the American Immigration
Lawyers Association (AILA) and a Member of the Board of Governors. Allen E.
Kaye is a.lso on the Executive Committee of the l ntcrnational Lnw Section of the
New York State Bar Association.
Mr. Kaye is a regular columnist on U.S. imrnigration and naturalization law {()r
many newspapers across the U.S. He is a frequent lecturer on the U.S.
immigration, naturalizalion, visa and consular law for various organizations,
associations, and foreign consulates including the American Immigration Lawyers
Association, The New York State Bar Association, The Queens County Bar
Association, The New Jersey State Bar Association and many others.
Mr. Kaye is listed in the Martindale-Hubbell Bar Register of Preeminent Lawyers
and also in The Best Lawyers in America, both in the field of Immigration and
Naturalization Law. He is also listed in the Who's Who Legal, The International
Who's Who of Business Lawyers. He is a co-founder ofIMMLAW, the National
Consortium of Immigration Law Firms.
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11-IE UNITED STATES IMMIGRAJJLVISA SELECTION S'(SJI..:'JIA
A. :FAMILY-BASED IMMfGRATION
1. Immediate Relatives-spouses, parents of U.S. citir.ens whose child is over the age of twenty-one and
unmarried children (under 21) of U.S. citi7..ens.
2. First Catxeoa - unmarried adult (over 21 years of age) children of U.S. citizens.
3, Second CategQKY-(a) spouses, minor children and (b) unmarried adult childru1 ofpcnnancnt residents.
4. Third Catee<>ry - married adult children of U.S. citizc11.
5. Jlourth Category-brothers and sisters of adult US. citizens (over 21 years of age).
B. EMPLOYMENT-BASED IMMIGRATION
I. First Cats:zor)': "Priority worlcers" - extraordinary ability' outstanding professors and researchers and
certain multinational executives and managers - labor certification not required.
2. Second Category: Professionals holding advanced degrees or aliens of exceptional ability */** (National
Interest Waiver).
3. Third Ca tee-ory: Professionals with baroilaureate degrees, skilled wOl:kers (2+ years of experience/training)
and "otherworkcrs''. (-2 years of experience/training)*
4. fourth Category: '"'Special immignmts" - includes clergy, foreign missionary workers, etc-labor
certification not required.
-new
5. ,Fifth Catttorv: Investors enterprises employing at least IO U.S. workers+ $500,000-$1 million
capiull - labor certification not required.
C. DIVERSITY-BASED IMMlGRATlON
Permanent divc.sityprogram (DV~Visa Lottery)
' Joh offer not required
''Requires labor certification
**Job offer and labor certification requirement may be waived
., LABOR CERTIFICA'l10.l'{S_
1. The U.S. Secretary of Labor must find that:
a. there arc not sufficient workers in the U.S. who aro able, willing, qualified (or"cqually qualified"
in the case of aliens who arc members of the teaching profession or who have exceptional ability in
the sciences or the arts), an<l available at the time of application for a visa and admission to t11e
United States and at the place where the alieu is to perform such skilled or unskilled labor (the
question of !!Vailability of local workero). and
b. the employment of such aliens will not adversely affect the wages and working oouditions of
worlcers in the U.S. similarly employed (generally, this is a question of prevailing wages).
2. Types of labor certifications:
l . Schedule A
2. Joh offer or individual labor certification (rww called PERM)
3. Note Schedule B - occupations 011 this list are those for which (generally) labor certifications will not be
issued.
By: Allen E. Kaye
Atto1ney at Law
LAW OFFICES OF ALLENE. KAYE, P.C.
111 Broadway, 13th Floor
New York, New York 10006
Tel: [phone]
Fax: [phone]
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