EMPLOYMENT-BASED IMMIGRATION

Employment-Based Immigration

U.S. employment-based immigration law provides several paths to permanent residence for foreign nationals whose education, ability, professional accomplishments, employment, or other qualifications place them within one of the employment-based immigrant classifications. Some cases require a permanent job offer and labor certification from the U.S. Department of Labor, while others do not. The correct strategy depends on the immigrant classification, the employer, the offered position, the beneficiary’s qualifications, and the long-term immigration objective.
Mark Weiner Law represents employers, professionals, executives, managers and other qualified foreign nationals in employment-based immigrant matters. The firm evaluates the case from the beginning so that the labor certification, immigrant petition, adjustment of status or consular-processing strategy are developed as parts of one coherent process.

EB-1: Priority Workers

EB-1A, Extraordinary Ability

The EB-1A classification is available to individuals who can demonstrate extraordinary ability in the sciences, arts, education, business or athletics through sustained national or international acclaim. A permanent job offer and labor certification are not required, and a qualified individual may self-petition.

EB-1B, Outstanding Professors and Researchers

The EB-1B classification is available to certain internationally recognized professors and researchers who satisfy the statutory and regulatory requirements. Unlike EB-1A, this classification requires a qualifying U.S. employer to file the immigrant petition.

EB-1C, Multinational Managers and Executives

The EB-1C classification is intended for certain multinational managers and executives who have qualifying employment abroad and who will work in the United States for a related U.S. employer in a managerial or executive capacity. These cases require careful analysis of the corporate relationship, the beneficiary’s duties abroad and in the United States, and the employer’s organizational structure.

EB-2: Advanced Degree, Exceptional Ability and National Interest Waivers

Employer-Sponsored EB-2

EB-2 classification may be available to members of the professions holding an advanced degree, or its recognized equivalent, and to individuals of exceptional ability in the sciences, arts or business. In the conventional employer-sponsored case, the employer generally must first obtain a permanent labor certification unless an exception applies.

National Interest Waiver

The National Interest Waiver, or NIW, permits USCIS to waive the job-offer and labor-certification requirements when the statutory and adjudicatory standards are met. A person seeking an NIW may self-petition. The analysis therefore differs substantially from a conventional PERM-based EB-2 case and requires both qualification for the underlying EB-2 classification and a separate showing that waiver of the job-offer requirement is warranted in the national interest.

Schedule A

Certain occupations and individuals may qualify under Schedule A, where the Department of Labor has predetermined that there are insufficient U.S. workers for designated occupations or circumstances. These cases follow a different labor-certification procedure and should not be treated as ordinary PERM cases.

EB-3: Skilled Workers, Professionals and Other Workers

EB-3 classification includes skilled workers, professionals and certain other workers. Most EB-3 cases require a permanent, full-time job offer from a U.S. employer and an approved labor certification from the Department of Labor. The beneficiary must satisfy the education, training and experience requirements stated in the labor certification, and the employer must be able to establish the continuing bona fide job offer and its ability to pay the offered wage as required by law.

EB-4: Certain Special Immigrants

EB-4 is a separate employment-based preference category for specified classes of special immigrants. It is not, as a general rule, a labor-certification category. Eligibility and petitioning procedures depend on the particular EB-4 classification involved.

PERM Labor Certification

For many EB-2 and EB-3 cases, the process begins with PERM labor certification. PERM is not simply an advertising exercise. The offered position, minimum requirements, prevailing wage, recruitment, employer documentation and the beneficiary’s qualifications must be considered together before the case is filed. Decisions made at the PERM stage can determine what is possible later in the immigrant petition and permanent-residence process.

Mark Weiner Law works with employers to define the position accurately, identify lawful minimum requirements, complete the required recruitment, document the results, and prepare the application for filing with the Department of Labor. After certification, the firm can proceed with the Form I-140 immigrant petition and, when appropriate, adjustment of status or consular processing.

Form I-140 and the Employer's Ability to Pay

For employer-sponsored classifications requiring Form I-140, approval depends on more than the beneficiary’s qualifications. The petitioning employer must satisfy the requirements of the requested classification and, where applicable, demonstrate its ability to pay the proffered wage from the priority date forward. Tax returns, annual reports, audited financial statements, payroll records and other financial evidence may become important depending on the facts of the case.

Adjustment of Status or Consular Processing

Approval of an immigrant petition does not by itself grant permanent residence. Depending on visa availability and the foreign national’s circumstances, the final stage may be adjustment of status in the United States or immigrant visa processing through a U.S. consular post abroad. Strategy at this stage can involve maintenance of status, timing, visa-number availability, derivative family members, portability issues and other case-specific considerations.

A Case Strategy, Not Just a Filing

Employment-based immigration cases are sequential. An error or inconsistency at the beginning can affect every later stage. Mark Weiner Law approaches the process as a single legal strategy, from the initial classification and labor-certification analysis through the immigrant petition and final permanent-residence process. Clients work directly with Mark Weiner, who has practiced immigration law since 1989.

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