Becoming a legal citizen and fighting for your rights can be a long and stressful process if you don’t have the right guidance in front of you. Work with a proven Orlando immigration attorney such as Mr. Yakzan to ensure your needs are met and your worries are forgotten. Attorney Yakzan is a naturalization lawyer who strives to help you achieve your goal of naturalization.
He also represented clients in N-400 petitions as well as in N-336 appeals when their applications were denied. Let’s talk today about how we can help you reach your American Dream™!
Employment-Based Immigrant Visas
INA allows for employment-based immigrant visas. Eligibility for these visas depends on the person’s background, education, employment history, and type of employment. Five categories allow for such classification. Some of these categories require a labor certification from the Department of Labor, and some do not.
First Preference Employment Category (EB-1)
under INA §203(b)(1)
Second Preference (EB-2) INA §203(b)(2)
This preference category is for professionals with advanced degrees or immigrants with exceptional abilities. The advanced degree must be higher than a bachelor’s and could be met by a BA and work experience. The position that the beneficiary would occupy must require an advanced degree, and the person must possess the qualifications, as defined in INA §101(a)(32).
National Interest Waivers are available for people who would enrich the United States. A person whose jobs are on Schedule A does not have to test the labor market and does not have a job offer at the time of adjudication of the I-485.
Bachelor’s Degree Plus Five Years of Experience:
A bachelor’s degree with five years of progressive experience is the equivalent of a MA degree, as per 8 CFR §204.5(k)(3)(i)(B). Congressional intent shows that a person with this combination has the equivalent of an advanced degree.
USCIS policy is that the BA cannot be met by a combination of experience and education but can be met by a combination of education. The five years of progressive experience must involve more responsibility and knowledge in the field of specialty.
National Interest Waivers (NIW):
This waiver is available under INA §203(B)(2)(B). The employer or the applicant can sign the petition, as per Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). To qualify for the waiver, the beneficiary must submit an ETA-9089 with a statement supporting the waiver claim.
According to 8 CFR §204.5(k)(4)(ii), the waiver is only available for EB-2 petitions. In Dhanasar, at 889 no. 9, the AAO issued new categories for the waiver. Under the ruling, the applicant must show 1) the proposed endeavor has national importance and substantial merit; 2) he or she is well-positioned to advance the endeavor, and 3) it would be beneficial for the United States to waive the labor certification.
Physicians may qualify for a Physician National Interest Waivers (PNIW) while international medical graduates (IMGs) are precluded from entering the United States. However, the ground of inadmissibility does not apply in these situations:
- Applicant possesses a certificate from the Educational Commission on Foreign Medical Graduates, is competent in English, and passed the clinical skills assessment examination. 8 CFR §214.2(h)(viii)(B)
- Doctor of international or national renown
- Not entering the United States to become a doctor, including professors, persons entering under another preference category, or when he or she enters as an asylee.
Under INA §203(b)(2)(B)(ii), if the physician is entering the US under an offer of employment, the physician must obtain a labor certification or a national interest waiver. Some physicians may work in an underserved area to overcome the J-2 two-years requirement. To obtain this benefit, the physician must show the following as per 8 CFR §214.2(a)-(c):
- He or she must work in a health shortage area or for the VA
- A federal or state agency must determine that the employment would be in the national interest
- He or she must work in the area for five years before he or she becomes eligible for adjustment of status or immigrant visa
A foreign medical graduate may also apply under the regular labor certification process, as indicated in 8 CFR §214.2(a)-(c).
Third Preference Employment Category (EB-3) INA §203(b)(3)
This category includes three types of immigrants:
- Professionals: Holder of Baccalaureate degree or foreign equivalents and professionals
- Skilled workers: For immigrants with full-time job offers and which requires at least two years of training or work experience
- Other workers
A labor certification is needed for these immigrants since a National Interest Waiver is not available but some of these occupations may fall under Schedule A.
Fourth Preference (EB-4) Special immigrants
under INA §203(b)(4)
This category includes several immigrants, including returning residents, persons reacquiring US citizenship, and religious workers.
Returning residents are those who did not abandon their residence but do not have a valid I-551 card. This category also includes commuters from borders who are Lawful Permanent Residents who live in Canada or Mexico and commute to the United States. Residents would file form DS-117 with all supporting evidence to show that they did not abandon her residence. They would be issued an SB-1 Immigrant Visa.
Religious Workers Who:
- For two years immediately preceding the petition has been a member of a religious denomination that has a bona fide, non-profit, religious purposes
- The person seeks to enter the US to work for at least 35 hours as a minister or a religious worker
- The person has been working as a minister or a religious vocation in the United States or abroad for at least two years immediately preceding the petition. The two years do not have to be in legal status. Once the two years are established and the I-360 is approved, the person may adjust if he has been out of status for less than 180 days. Some breaks in the two years are allowed as long as:
- The applicant was still employed in a religious denomination
- The break did not exceed two years
- The purpose was to further religious education
- The applicant was still a member of the denomination. The employment must be either full-time or continuous. To meet the two years requirement the person should have been compensated.
Special Immigrant Juveniles (SIJ):
This is a hybrid between state dependency laws and the immigration laws of the United States. The requirements for this type of classification are as follows:
- The child has to be under 21 at the time of filing the I-360
- Has been declared dependent by a state court before he turned 18
- Whose reunification with one of his or her parents is not a viable option
- In his or her best interest not to be returned to the parent’s country of citizenship