THE “GREEN CARD” process begins for many through a petitioning family member, or for a select few through the diversity visa program , and for some with an offer of permanent employment by a U.S. employer. This article will give a brief overview of employment-based immigration options for professionals without the need for labor certification.

The Immigration and Nationality Act (INA) at Sections 201(d) and 203(b) provide for 140,000 annual permanent residence visas through employment. This number allocates certain percentages to five preference categories and creates a priority system, which determines the length of time a person is in line for an available immigrant visa. Historically, these categories have been backlogged, and more recently, have been current for all immigrant visa categories.

The First Preference is reserved for Priority Workers who are either • Aliens with extraordinary ability, • Outstanding professors and researchers, or • Multinational executives and managers. The Second Preference category is allocated to Advanced Degree Professionals and Exceptional Ability Aliens. The Third Preference category is the most prescribed category as it covers Skilled Workers, Professionals and Other Workers. The Fourth Preference category is reserved for Certain Special Immigrants, and the Fifth Preference category covers Employment Creation Immigrants or Investors.

First Preference (Priority Workers)
One of the advantages to foreign workers who are eligible to immigrate as Priority Workers is that no labor certification is required. Moreover, Aliens of Extraordinary Ability may self-petition without the need for a job offer and must show an intention to continue to work in the area of expertise once they have immigrated. Petitions for Outstanding Professor and Researchers and Multinational Executives and Managers are also exempt from the labor certification process but require a job offer by a U.S. employer. Thus, the immigrant visa process for all three categories of Priority Workers is initiated by filing a petition with the U.S. Citizenship and Immigration Services (US CIS).

Regulations require of Aliens with Extraordinary Ability to heavily document their extraordinary ability through either a one-time achievement, such as receipt of a major, internationally recognized award like the Nobel or Pulitzer Price, or at least three of ten listed areas: (i) receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (ii) membership in associations that require outstanding achievements of their members, as judged by recognized national or international experts; (iii) published material about the applicant in professional or major trade publications or other major media; (iv) participation as a judge of the work of others; (v) original scientific, scholarly, artistic, athletic, or business-related contributions of major significance; (vi) authorship of scholarly articles in the field; (vii) artistic exhibitions or showcases; (viii) Performance in a leading or critical role for organizations or establishments that have a distinguished reputation; (ix) high salary or other significantly high remuneration for services, in relation to others in the field; or (x) commercial successes in the performing arts. Because petitions for extraordinary ability workers are often challenged by the U.S. CIS as not satisfying the “sustained acclaim necessary to qualify,” the Extraordinary Ability Alien must delve deeply into their historical achievements and backgrounds before submitting a petition under this category. Recent Administrative Appeals Unit (AAU) decisions seem to indicate that an Extraordinary Ability Alien must distinguish himself in such a way as to significantly setting himself above from others in the field at the national or international level.

A petition for an Outstanding Professors and Researchers, the second group of Priority Workers, only requires an offer of employment and no approved labor certification application is needed. An applicant under this category must be recognized internationally as outstanding, have a minimum of three years of experience as a researcher or teacher in the field of expertise, and enter the U.S. to work in a tenure (or tenure track) teaching position or comparable research position at a university or institute of higher education, or a comparable research position with a private employer who employs at least 3 persons full-time in research positions and has achieved documented accomplishments in the field. The second subcategory requires an extensive showing of at least two of the following criteria: (i) receipt of major prizes or awards for outstanding achievement; (ii) membership in an association which requires outstanding achievement of its members; (iii) published material in professional publications written by others about the applicant's work; (iv) participation as a judge of the work of others; (v) original scientific research contributions; or (vi) authorship of scholarly books or articles in the field.

The third subclassification for Priority Workers is Multinational Executives and Managers who do not require the filing of a labor certification application, or a showing of educational credentials or academic achievements to qualify. There must be a job offer, though the employer is not required to pay prevailing wages . The executive or manager, prior to filing the immigrant visa petition, must have been employed with the employer at an overseas parent, subsidiary, or branch office for one year in the preceding years, and the U.S. company must have been "doing business" in the United States for one year. This category must be thoroughly factually documented and does not include first-line managers.

Second Preference (Exceptional Ability Aliens and Advanced Degree Professionals)
Workers claiming Exceptional Ability in the sciences, arts, or business must have demonstrated a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. A job offer and labor certification must be submitted with the petition for Second Preference workers unless the job offer is waived as being in the National Interest. To demonstrate exceptional ability the worker must show at least three of the following regulatory requirements: • a degree relating to the area of exceptional ability; • letter(s) from current or former employer(s) showing at least ten years of experience; • a license to practice the profession; • evidence that the worker has commanded a salary which demonstrates exceptional ability; • membership in professional associations; or • recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. If the above standards do not readily apply comparable evidence may be submitted.

Advanced Degree Professionals must obtain labor certification unless labor certification exemption is in the National Interest. The National Interest Waiver is discussed in more detail below. Regulations provide that any U.S. employer may file an immigrant visa petition on behalf of an advanced degree professional.

An advanced degree is a degree above a baccalaureate degree or its foreign equivalent degree. A baccalaureate degree followed by five years of progressive experience in the specialty is considered the equivalent of a master's degree . A combination of lesser degree and experience does not necessarily meet the foreign equivalent degree requirement. A Second Preference petition for an advanced degree professional must show the worker's advanced degree, transcripts, and if applicable the proof of five years of progressive experience.

Second Preference petitions must be accompanied by a job offer and labor certification application unless the position is precertified under the Department of Labor (DOL) Schedule A or in the National Interest.

Evidence of a successful Schedule A Application must include 1. the worker's widespread acclaim and international recognition, 2. the work during the past year required and will require exceptional ability, and 3. two of the following seven factors: (i) international prizes or awards for excellence, (ii) membership in international organizations that require outstanding achievements of their members, (iii) published material in professional publications, (iv) participation as a judge of the work of others, (v) original scientific or scholarly research contributions of major significance, (vi) authorship of scientific or scholarly articles in international journals, or (vii) display of the alien's work at artistic exhibitions in more than one country.

As an alternative, an employer or the worker may seek exemption from the job offer and labor certification requirements by filing a National Interest Waiver (NIW) request with the Second Preference petition. The petition may be filed by an employer or the worker. In 1998 Matter of New York State Department of Transportation (NYSDOT) established a three-part test requiring NIW requests to show that 1. the employment is in an area of substantial intrinsic merit; 2. the benefit will be national in scope; and 3. the national interest would be adversely affected if a labor certification were required. The benefit must be national in nature as a regional or local benefit falls short of the standard.

The benefit must be prospective yet cannot be speculative. The future national interest is determined by reflecting on the applicant's prior achievements. That is, the evidence must clearly establish the applicant's record justifies a future benefit to the national interest.

These cases must be documented through letters of reference that vary the degree of the three factors. NIW cases that are being denied usually are weak in documenting how the national interest will benefit.

Third Preference (Skilled Workers, Professionals, and Other Workers)
Third Preference professionals are with some exceptions subject to labor certification. Skilled Workers (EB-3), Professionals, and Other Workers generally occupy positions requiring the filing of a labor certification application, whereas a worker is exempted from labor certification if he or she qualifies under Schedule A. Schedule A applications are filed directly with the U.S. CIS foregoing the labor certification process. Third Preference workers under Schedule A fall into occupation that are pre-designated as shortage occupations, such as certain professional nurses and physical therapists. Professional nurses and physical therapists must provide additional proof of their ability to practice their profession in the United States, such as that they meet licensing and English language requirements, and a certification from an approved credentialing organization.

Fourth Preference (Special Immigrants)
Sections 101(a)(27)(C)(i), (ii), and (iii) of the INA govern Religious Workers. Religious Workers are ministers, religious men and women, and lay workers, who may immigrate if they can demonstrate that they, for at least two years immediately preceding the filing of the application, have been members of a religious denomination having a bona fide, non-profit religious organization in the United States and seek to enter the United States, in case of ministers, solely for the purpose of carrying on the vocation of a minister of that religious denomination, or in case of other religious workers, that they come at the request of the organization to work in a professional capacity in a religious vocation or occupation. The provisions of Section 101(a)(27)(C)(ii)(II) and (III) for other religious workers is sunsetting on October 1, 2003, and if not extended other religious workers may not be able to immigrate under the Fourth Preference category after that date.

Fifth Preference (Immigrant or Employment Creation Investors)
Employment Creation Investors or Entrepreneurs may apply directly for the “green card” with the U.S. CIS or through consular processing upon establishing they have invested or are actively investing capital in the amount of $1 million for the purpose of engaging in a new commercial enterprise, which will benefit the United States economy and create full-time jobs for 10 or more U.S. workers. Aside from establishing the required investment amount, investors must show that they obtained the capital through lawful means and are actively managing the enterprise. The commercial enterprise must be a for-profit activity.

Fifth Preference applicants first obtain a conditional “green card,” requiring them to request a removal on the condition before the two-year anniversary of having been approved resident status.