Employment Second Preference (EB-2)
Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Sciences, or Business may qualify for the EB-2 classification. All EB-2 applicants must have a labor certification approved by the Department of Labor, or Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. A job offer is required and the U.S. employer must file a petition on behalf of the applicant. Applicants may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the applicant may file the petition, Form I-140, along with evidence of the national interest. There are two subgroups within this category:
National Interest Waiver (NIW)
Applicants holding advanced degrees or possess exceptional ability may apply for immigrant visa through the second preference (EB-2) employment category, which generally requires a labor certification for this category. This requirement can be waived if the applicant can demonstrate that granting the EB-2 petition is in the national interest.
In order to file an NIW petition, the applicant must demonstrate that he is seeking work in an area of substantial intrinsic merit to the US; that the benefit from the applicant’s work will be national in scope; and that such national interest would be adversely affected if a Labor Certification were required for the applicant.
There are two types of national interest waiver (NIW) applications: the standard case and the physician NIW. In standard NIW cases, court decisions have established a list of factors that show the permanent resident's admission would be in the national interest:
Physician NIW
The Nursing Relief Act of 1999 establishes special rules for requests for a national interest waiver that are filed by or on behalf of physicians. To be eligible for a physician NIW, the foreign physician must:
Employment Third Preference (EB-3)
All EB-3 applicants require an approved I-140 petition filed by the prospective employer. All such workers require a labor certification, or Schedule A designation, or evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. There are three subgroups within this category:
Labor Certification
A permanent labor certification issued by the Department of Labor (DOL) allows a US employer to hire a foreign worker to work permanently in the United States. In most of the employment based visa categories (EB-2 and EB-3), before the U.S. employer can submit an immigration petition to the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification request from the DOL's Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.
To improve the operations of the permanent labor certification program, DOL implemented a new re-engineered permanent labor certification program (PERM) effective March 28, 2005. Under the PERM process, recruitment is conducted prior to filing to test the market. Recruitment includes two Sunday print advertisements, and for certain occupations, further forms of recruitment such as job search websites, postings on company websites, employee referral programs, or local newspapers. A job order with the State Workforce Agency is also required. Upon completion of the recruitment, an Audit File is created that includes the evidence of recruitment as well as information on the company's existence, ability to pay, and the credentials of the foreign national. A PERM case can be submitted either electronically or through the mail.
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