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North Houston Immigration Lawyer

Smith & Garg, llc. – Serving Residents In Spring Conroe Magnolia Cypress & Champion Forest

People often mistake non-immigrant temporary worker visas, such as H-1B visas and L-1 visas, with employment based immigrant petitions.  Merriam Webster Dictionary defines “immigrant” as “a person who comes to a country to take up permanent residence.”  Thus, the word “immigrant” represents a foreign national who is entering the U.S. with the intent to live permanently, not as a temporary worker (or as a “non-immigrant.).  There are two ways in which an alien may enter the U.S. as an immigrant.  The first is through family-based petitions.  That is, the alien is being sponsored by a U.S. relative that is either a U.S. citizen or a permanent resident.  The second way is through employment-based petitions.  Generally, an alien may be sponsored by a current or prospective employer.  Sometimes, the “employer” may also be the alien’s own company in which he/she owns interest shares.  Please see below and contact one of our experienced immigration attorneys at Smith & Garg, LLC for more details and tailor your immigrant petitions in accordance to your needs and qualifications.

What is an Employment Based Petition?

An employment based petition is a process in which a U.S. employer sponsors an alien employee in the U.S., or a prospective alien employee abroad to come to the U.S. to live and work as a permanent resident.  There are five employment based petitions.  Some of these categories do not require the intensive “labor certification,” process, which is now being applied electronically through a process called“PERM.” Other categories require an approved PERM from the U.S. Department of Labor, obtain a “priority date” (described below), and wait for a visa to be available before the employer may apply for an immigrant petition for an alien employee, Form I-140.

What Are The Five Employment Based Categories?

• Employment Based First Preference – The first preference is reserved for three types of workers, which do not require a Labor Certification (PERM) prior to applying.  They are as follows:
• Subcategory (a) – Workers of extraordinary skills in the arts, sciences, education, business, and athletics.
• Subcategory (b) – Aliens that are outstanding professors and researchers.
• Subcategory (c) – Multi-national executive and managers.

Each year, there are 40,000 visas available for this category.  Usually, the visa number is “current” for this category.  That means that the 40,000 limit has not been reached and a visa is immediately available for aliens who are qualified under this category.  At times, however, there would be shortages for applicants under this category.  In such case, the aliens will be put on a waiting list (a back-log) until a visa is available based on the priority date of the alien’s application.

• Employment Based Second Preference – The second preference is reserved for three types of workers, and does required a Labor Certification (PERM) prior to applying.  They are as follows:
• Workers of exceptional skills in the arts, science, and business.
• Foreign nationals with advanced degrees, such as Masters and Doctorate degrees.
• Alien physicians who will be practicing medicine in the U.S. in an underserved area.

Each year, there are 40,000 visas available, plus any unused visas from the first preference for this category.  Similar to first preference, the visa number is usually “current” for this category.  That means that the 40,000 limit has not been reached and a visa is immediately available for aliens who are qualified under this category.  However, as stated above, the employer must first obtain a job offer and an approved PERM from the U.S. department of labor for these workers prior to applying for their immigrant petitions.

• Employment Based Third Preference - There are 40,000 visa numbers allocated annually to the employment based third preference.  Like the second preference, the applicant must have a job offer and a labor certification approved prior to applying.  There are three subcategories under employment based third preference, which are as follows:
• Professionals who have at least an equivalent of a U.S. Bachelor degree;
• Skilled workers with at least two years experience in a specialized area; and
• Unskilled workers for jobs that required less than two years experience.

Previously, certain professions which lacked qualified personnel in the U.S., such as Nurses and Physical Therapists, were allowed to utilize the unused visas from 2003-2005 from the first and second preference and waived the labor certification requirement.  This process is called “blanket certification” (also called "Schedule A") by the Department of Labor.  Since November of 2006, however, all visas under Schedule “A” ran out.  As a result, all nurses and physical therapists now must apply under employment based third preference, or under the H-1B temporary worker visa category.  Of these 40,000 visas, 10,000 may be used for ''other workers," whose subcategory is therefore usually backlogged for many years.  Currently, there are no visas available for “unskilled workers.

• Employment Based Fourth Preference – The fourth employment based preference is preserved for religious workers and other special immigrants.  Each year, 10,000 immigrant visas are reserved for this category.  The “special immigrants” often only make up a small portion of the 10,000.  The majority of the visas are taken up by three categories of religious workers, which is as follows:
• Ministers, priests, monks, and rabbi of a recognized religion;
• Professionals employed in a religious occupation or vocation; and
• Skilled ad unskilled workers in a religious occupation or vocation.

• Employment Based Fifth Preference – The fifth category of employment based visa is reserved for those that invest in the U.S. for at least $1,000,000 in an urban area or at least $500,000 in a rural area. The company can be a new company or an existing company and must employ at least 10 U.S. citizens or permanent residents.  The alien must control and manage the company.  The advantage under this category is that the alien and his family (including unmarried children under 21) may obtain permanent residency status immediately upon arriving and a green card within weeks.  No PERM is required under this category. 

People often confuse employment based fifth preference with E-2 treaty investor. An E-2 Treaty Investor visa is a “non-immigrant” visa that allows aliens abroad to come to the United States to invest and maintains their business in the U.S.  The E-2 visa is granted for 2 years and must be renewed every two years.  However, it can be extended indefinitely so long as the person maintains his/her qualifications.  In addition, the alien does not have to invest $1,000,000 or $500,000.  The investment can be as little as $30,000, depending on the type of investment.  There are other advantages of an E-2 Treaty Investor.  To learn more about E-2 Treat Investor, please click on the link.

Please contact our office to see how we can assist you in obtaining either an immigrant or nonimmigrant visa. Also, please review our website to learn more about our Areas of Practice.