Employment based residence falls into five "preference categories" (but only three commonly used ones). But a helpful way to look at employment based immigration is that it falls into three major categories: cases requiring (1) a petitioner and a test of the US labor market, (2) a petitioner, but no test of the US labor market, and (3) neither a petitioner, nor a test of the US labor market.  Generally, cases that require no petitioner, or no test of the US labor market are more difficult to qualify for, but carry significant benefits.

The menu to the right has links to pages with more detail on issues that arise during the employment-based permanent residence process.  This page provides an overview of all of the employment based categories.

Preference Categories and Priority Dates

The major concern of temporary workers in selecting the appropriate employment based category is how long it will take before they become permanent residents.  The same worker can face a wait ranging from a few months to more than 10 years to obtain residence depending on the preference category.

Like family based immigration, employment based immigration is subject to a quota system introduced in 1965.  There are a limited number of visas issued each year and if more beneficiaries are petitioned than visas are available in a specific preference category for beneficiaries born of a specific country, then the beneficiaries have to wait in queue until a number is available.  Numbers are issued by "priority date" and the priority date is the date a labor certification was filed, or if the case is one that does not require a labor certification, then the date that the I-140 petition was filed.

Employees will often agitate to file under their desired preference category to avoid long waits, but this can cause other problems.  A petition filed in an inappropriate category may remain pending for a year or longer before a decision reveals that it was inappropriate and the employer must start again from the beginning.

The correct preference category is the one that matches the job and the employee's qualifications as they exist in reality and not as they could exist if the employer changed the requirements or puffed the employee's qualifications by caving into the employee's pleas.

First Preference Category

The first preference category is divided into three subcategories: (1) extraordinary ability, (2) outstanding researchers, and (3) multinational managers and executives.  None of the first preference category cases require a test of the US labor market, which entails advertising to see if qualified US workers are available and want the job.  The first preference category is not currently subject to any backlog in the issuance of visa numbers under the worldwide quota system.

Second Preference Category

The second preference category is also divided into three subcategories: (1) advanced degree professionals, (2) exceptional ability, and (3) those seeking national interest waivers.  Advanced degree professionals are those who possess a master's or higher degree or a bachelor's degree and more than five years of experience (the job must also require at least this minimum education and experience).  National Interest Waiver applicants must show that they have an advanced degree or exceptional ability and that it is in the national interest of the United States to waive the requirements of a petitioner and test of the US labor market.  Aside from national interest waiver cases, workers in the second preference category face a wait of about five years if they were born in India or China.  But this wait is much shorter than the wait in the third preference category.

Third Preference Category

The third preference category comprises (1) professionals, and (2) skilled workers.  Professionals are those who possess at least a bachelor's degree where the job requires one and skilled workers are those who possess at least two years of related experience where the job requires at least that experience.  Third preference category waits are more than seven years for most countries and more than eight  years for those born in India.

Chargeability and Cross-Chargeability

Both employment and family based immigrants are "charged" to the country of their birth and not of their citizenship, or nationality.  INA 202(b),(c).  This means that a child born to a foreign worker in Kuwait, or Japan, or another country that does not recognize jus soli (citizenship by birth) is charged to Japan for the purpose of visa availability even though the child has no right to remain in the country of birth after the temporary work period of the parent ends.  Sometimes nationals of India or China who obtain Canadian or Australian citizenship assume that they can evade the long third preference category queue by claiming that their country of citizenship should determine chargeability.  But the only determining factor is the country of birth.

An important trick to remember is that the law allows children to use the country of chargeability of their parents and allows one spouse to use the country of chargeability of the other spouse.  This rule controls in employment based immigration as well.  INA 202(b), (c).  So, for example, if a second preference category employment based beneficiary was born in India, but has a spouse born in Bangladesh, using the spouse's country of birth for priority date purposes will save the couple a wait of more than five years because there is no second preference category queue for appliants of Bangladeshi birth, but there is a queue of more than five years for those born in India.

Below is a charge identifying which employment based categories require the labor certification test of the US labor market through advertising for qualified US workers, which require a US petitioner, and which require neither.

All employment-based immigrant petitions are filed using form I-140.  To learn how USCIS processes I-140 petitions, read the USCIS I-140 Standard Operating Procedures (SOP) from 2007.

Please browse the business visa topics links to the right for more details on employment based permanent residence, and please do contact us if you have further questions.  We offer a free initial consultation and we've offered creative solutions for companies from two person startups to $2 billion publicly traded companies.