Shortage-based Immigration:  Labor Certification

To sustain economic growth for the United States, U.S. employers may hire workers from other countries when it is not possible to find qualified and willing U.S. workers for the position. Labor certification is a process through which a U.S. employer proves that it cannot find a minimally qualified U.S. worker for a specific position in a specific location.

EB1 - First Preference 28.6%

E11 Persons of extraordinary ability in the sciences, arts, education, business, or athletics.  Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise.

Applicants do not have to have a specific job offer but must provide evidence they are entering the U.S. to continue work in the field in which they have extraordinary ability.   

Applicants can file their own petition with the CIS, rather than through an employer.

ü Labor Certification Not Required

ü Self-Petitioning Allowed / Job Offer Not Required

Outstanding Professors and Researchers

E12 Professors and researchers who are recognized internationally and have at least three years experience in teaching or research.

No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the CIS.

ü Labor Certification Not Required

Multinational Executives and Managers

EB1C Multinational 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. The applicant must be coming to work in a managerial or executive capacity.

Pending the green card application process, the applicant must maintain your business operations in his or her home country.   

No labor certification is required for this classification, but the prospective employer must provide proof of a permanent job offer and file a petition with the CIS. 

ü Labor Certification Not Required

Schedule A lists  occupations for which the U.S. Department of Labor has determined there is an insufficient number of U.S. workers who are able, willing, qualified and available.   Inclusion on Schedule A also establishes that the employment of foreign workers in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed.  Therefore, 'Schedule A' foreign workers can obtain a green card without first having to go through the entire labor certification process. Currently, 'Schedule A'  explicitly lists only: .

EB2 - Second Preference 28.6%

ü Labor Certification Not Required for professions designated on 'Schedule A'.

Professionals Holding an Advanced Degree

E21 A post-baccalaureate degree, or a baccalaureate degree with at least five years progressive experience in the profession. 

The statute requires the alien be a member of the profession and hold an advanced degree but does not state that the position must require the advanced degree.

Persons with Exceptional Ability in the Arts, Sciences, or Business

E21 Exceptional Ability means having a degree of expertise significantly above that ordinarily encountered within the field.

EB2 Advanced-degree professionals and aliens with exceptional ability may avoid labor certification and job offer requirement if the exemption would be in the national interest. In such cases,  the alien may file the petition with evidence of the national interest.

ü Labor Certification Not Required

ü Self-Petitioning Allowed / Job Offer Not Required

ü Labor Certification Not Required for  professions designated on 'Schedule A'.

Skilled Workers

E31 Skilled workers are persons capable of performing a job requiring at least two years'' training or experience.

Professionals with BA Degree

E32 Professionals with a Baccalaureate Degree are members of a profession with at least a university Bachelor's degree.

Other Workers

EW3 Other Workers are those persons capable of filling positions requiring less than two years'' training or experience ("capable ... of performing unskilled labor, not of a temporary or seasonal nature ...")

EB4 - Fourth Preference 7.1%

Religious Workers

Religious workers coming to carry on the vocation of a minister of religion, or to work in a professional capacity in a religious vocation, or to work for a tax-exempt organization affiliated with a religious denomination.

Certain overseas employees of the U.S. government

Certain dependents of international organization employees

Retired employees of international organizations

Certain members of the U.S. Armed Forces

EB5 - Fifth Preference 7.1%

Employment Creation Investors

EB5  Engagement in a commercial enterprise serves as a basis for issuance of 10,000 E1 visas yearly.  Of the 10,000 investor visas available annually, 5,000 are set aside for those who apply under a pilot program involving an CIS-designated “Regional Center.”  

To qualify, the applicant must invest between U.S. $500,000 and $1,000,000, depending on the employment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family. 

ü Labor Certification Not Required

ü Self-Petitioning Allowed / Job Offer Not Required

ü Does not require you to maintain your existing home-country business

ü Does not require extraordinary ability or exceptional ability

Attention to EB5 drawback: 

If you plan to go down this EB-5 path to your green card, it is critical that your case is ultimately successful.  Unlike most other green card paths, the EB-5 category gives you "conditional" permanent resident status (i.e., a temporary green card) up front.   This "conditional resident" mechanism means that after you receive your conditional green card, you will lose any previous nonimmigrant status (e.g., H-1, L-1, E-2, etc.) you may have had.   Effectively, this particular green card mechanism pulls your nonimmigrant "safety net" out from under your green card effort. Therefore, a critical pre-screening of your investment and case is imperative to increase your chance of final approval. 

January 2010 Employment-Based Visa Bulletin

The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number.

Once USCIS finds it necessary to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.

1st Preference:  Current for all Areas

2nd Preference:  Current for all Areas except:
     China, mainland born, May 01, 2005
     India, January 22, 2005 

3rd Preference:   August 01, 2002 for all Areas except:
     India, June 01, 2001
      Mexico, July 01, 2001

Other Workers:  limited annually to 5,000 since 2002 
     June 1, 2001 for all Areas

4th Preference:    Current for all Areas

Certain Religious Workers:   Current for all Areas  

5th Preference:  Current for all Areas

5th Pilot Programs:  Current for all Areas

Targeted Employment Areas/ Regional Centers:  Current for all Areas

Dealing with Visa Retrogression

Unfortunately, in April 2009, the waiting times for a green card for a professional or a skilled worker under the EB-3 category lengthened from 4 to over 6 years.  Visas were, as of May, now unavailable.

Amazingly, some clients are, despite occurrences of retrogression, able to avoid waiting years abroad for a visa to become available.  Adjustment of status applicants will receive work authorization within 90 days!

Click here to learn about possibilities to deal with visa retrogression for  

• H-1B visa holders; and,

• RNs and anyone with an approved I-140 petition for work in an EB-1, EB-2, or EB-3 employment based category

John Hopkins University Campus

The Department of State has available a recorded message with visa availability information which can be heard at:  (area code 202) 663-1541.  This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category:  Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.