Employment-Based Immigrant Visas and Sponsorship

Each fiscal year, about 140,000 immigrant visas are available for foreign nationals and their families seeking U.S. residency based on job skills. These visas are divided into five employment-based preference categories. If you meet the necessary qualifications in skills, education, or experience, you may qualify for permanent residency. Some categories require a permanent job offer from a U.S. employer who will act as your sponsor. However, in certain cases, applicants may file their own petitions without an employer’s sponsorship.

Labor Certification Process

In the second and third employment-based immigration preference categories, U.S. employers must usually obtain a labor certification from the Department of Labor (DOL) before filing an immigrant petition with USCIS. This process ensures that hiring a foreign worker will not negatively impact U.S. workers by verifying two key factors:

1. There are not enough qualified and willing U.S. workers available for the job.
2. Employing a foreign worker will not lower wages or working conditions for similarly employed U.S. workers.

Employers must submit Form ETA-9089, either through DOL’s Foreign Labor Application Gateway (FLAG) system or as an approved Final Determination – Permanent Employment Certification Approval document.

Exceptions to Labor Certification Requirements

Certain occupations, categorized as Schedule A, do not require labor certification because DOL has already determined a labor shortage. These include:

• Group I: Registered nurses and physical therapists.
• Group II: Individuals with exceptional ability in the sciences, arts, or performing arts.

For Schedule A occupations, employers must still submit Form ETA-9089, but without DOL certification.

Additionally, national interest waivers (NIW) allow applicants under the second preference category to bypass the labor certification process if their work significantly benefits the U.S. These petitions must include Form ETA-9089, Appendix A, and a signed Final Determination.

Permanent Worker Visa Preference Categories

The U.S. immigration system offers five employment-based (EB) visa preference categories for permanent workers, each with specific eligibility requirements:

• EB-1 (First Preference): For individuals with extraordinary ability in sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives or managers. No labor certification required.
• EB-2 (Second Preference): For professionals with advanced degrees or individuals with exceptional ability in arts, sciences, or business. Labor certification required unless applying for Schedule A designation or a national interest waiver.
• EB-3 (Third Preference): For professionals, skilled workers, and other workers. Labor certification required unless applying for Schedule A designation.
• EB-4 (Fourth Preference): For special immigrants, including religious workers, foreign service employees, international organization retirees, and certain alien minors. No labor certification required.
• EB-5 (Fifth Preference): For business investors who invest $1,050,000 (or $800,000 in targeted employment areas) in a commercial enterprise that creates at least 10 full-time jobs. No labor certification required.

Navigating the U.S. immigration process can be complex, and professional guidance can help ensure a smooth application. For more details on which employment-based visa category best suits your qualifications and whether you require labor certification, consult our immigration expert. Also you can check our PRACTICE AREA segment for further details on each topic.