The Immigrant Petition (I-140) What is an immigrant petition? An employer files an immigrant petition on behalf of an employee when the employer wishes to formally sponsor the employee for U.S. immigration. The petition is a formal offer of “permanent” employment (that is, employment of indefinite duration). What’s the difference between an immigrant petition and a labor certification application? A labor certification application is an application to the government (specifically, to DOL) asking for official certification that a job exists that can’t be filled by a U.S. worker. An immigrant petition is a petition to the government (specifically, to INS) asking the government for permission to hire a specific foreign national to “permanently” fill the job. Most immigrant petitions must be based on approved labor certification applications, because for most jobs, the law requires DOL to find that there is a shortage of U.S. workers for the job. An I-140 can be filed pursuant to: 1. A certified Alien Labor Certification (ETA750) from the US Dept. of Labor; or 2. National Interest Waiver; or 3. Outstanding Researcher/Professor; or 4. EB1 Intracompany Transferee (Manager or Executive under L-1A only) ; or 5. Extraordinary Ability Alien For categories 2 to 5, an Alien Labor Certification is NOT required. What goes into an immigrant petition? The application form, Form I-140, provides information about the company (the “petitioner”), the candidate (the “beneficiary”), and the job offered. The employer must also request on the form that the beneficiary be classified according to a specific preference category. What is a preference category? Under U.S. laws, there are five preference categories in which an employment-based immigrant is eligible for assignment. Statutory quotas limit the number of people who can immigrate each year depending both on the preference category in which the person is classified, and the person’s country of birth. The vast majority of employment-based immigrants fall into either the second preference (EB2) or the third preference (EB3) category. What is the difference between EB2 and EB3? Generally, EB2 classification is for people who will work in jobs that require someone with either an advanced degree (for example, a master’s degree or Ph.D.) or its equivalent (i.e., a bachelor’s degree plus at least five years of “progressive” experience). EB3 is for people whose jobs don’t require such education or expertise. Classification is determined not by what education and experience the person actually has, but by what education and experience is necessary for the person’s job as set forth in the labor certification. What does it matter whether a person is classified as EB2 or EB3? Every year, quotas allow only a limited number of people to immigrate to the U.S. The quotas depend both on the preference category and the country of one’s birth. The laws do not allow more than a certain number of EB2 and EB3 individuals to immigrate, and each country is limited to a percentage of the total number of each category. For people from most countries, it makes no difference whether they are classified as EB2 or EB3, because both of these categories are “current” (meaning there is no waiting to immigrate) for most of the world’s countries. Only two countries have historically not been current from time to time – India and People’s Republic of China. EB2 and EB3 immigrants born in these countries may face waits of anywhere from one to four years or more* before they are allowed to immigrate. Please check the latest Visa Bulletin. The situation changes from time to time. Since about 2000, all EB categories for all countries have been current.
|