SECOND EB-2

Advanced degree Professionals and Individuals of Exceptional Ability

40,000 Visas per year

1. Individuals of exceptional ability in the sciences, arts, or business.
2. Members of the professions, if they hold an advanced degree (or the equivalent).

THIRD EB-3

Skilled Workers, Professionals and other Workers

40,000 Visas per year

1. Professionals with bachelor's degrees (not qualifying for a higher preference category).
2. Skilled workers (minimum two years training and experience).
3. Unskilled workers (maximum 10,000 visas available per year, of which 5,000 have been dedicated to adjustees under the Nicaraguan Adjustment and Central American Relief Act (NACARA).

FOURTH EB-4

Special Immigrants: Religious Workers

10,000 Visas per year

This classification is comprised of all special immigrants as defined in the Immigration Statute, other than returning residents and former U.S. citizens who are eligible to become citizens again. We discuss here only one subcategory: religious workers.

Religious Workers Includes:

• Ministers (those authorized to conduct worship services and perform other duties assigned to the clergy of the religion)
• Religious workers in professional fields
• Other religious workers.

Limit on admissions:

Until September 30, 2008, up to 5,000 EB-4 immigration visas may be made available each fiscal year to religious workers who are not ministers. Ministers are not subject to this limit.

SUNSET OF PROVISION FOR RELIGIOUS WORKERS:

After September 30, 2008, religious workers other than ministers will no longer qualify as EB-4 immigrants. Ministers will still qualify after September 30. 2008.

FIFTH EB-5

Immigrant Investors

10,000 Visas per year

Entrepreneurs whose new commercial enterprises will directly create 10 or more jobs in the U.S.; 3,000 visas reserved for investors in targeted employment areas and 300 for Immigrant Investor Pilot Program.

The "priority date" determines an individual's "place in line" for a visa. For EB-1 immigrants, the priority date is the date the employer files the Form I-140 with USCIS. For EB-2 and EB-3 immigrants, the priority date is the date the employer applies for the labor certification, if an individual labor certification is required. If an individual labor certification is not required, the priority date is the date the employer files the Form I-140 with USCIS. If the foreign-born national is the beneficiary of more than one Form I-140, the priority date for EACH Form I-140 is the priority date for the earliest Form I-140. For EB-4 immigrants, Form I-360 is filed instead of Form I-140. The priority date is the date of filing the Form I-360.

The Visa Office, U.S. Department of State, publishes for each month a Visa Bulletin, which specifies the priority date for each immigrant visa classification. If an individual's priority date is earlier than the priority date shown in the Visa Bulletin for the particular immigrant visa classification, then an immigrant visa is available for the individual's use. If the Visa Bulletin shows the priority date as "C," then an immigrant visa is available for all approved visa petitions beneficiaries in that classification. The current visa bulletin is available at on our website under "Priority Dates."

DOCUMENTATION:

The foreign-born national must demonstrate a major achievement such as an internationally recognized award (for example Nobel Prize) or evidence establishing at least three of the following:

1. Lesser national or international award for excellence in the field of individual's intended U.S. employment.
2. Membership in association(s) in foreign-born national's field that require members to have demonstrated outstanding achievements as judged by acknowledged experts.
3. Published material about the foreign-born national in major professional/trade publications or other major media.
4. Selection of foreign-born national to judge others in the same or allied field.
5. Original contributions of importance in the foreign-born national's field.
6. Authorship of scholarly articles in professional/trade publications or other major media.
7. Display of foreign-born national's work in artistic exhibitions.
8. Performance of leading or critical role for distinguished organizations or institutions.
9. High salary or other remuneration in relation to others in the field.
10. Commercial success in the performing arts (box office receipts, recordings, videos, etc.)

Note: If the above criteria do not readily apply to the foreign-born national's occupation, the individual may submit comparable evidence.

EMPLOYMENT IN THE U.S.:

Strictly speaking, the individual of extraordinary ability need not be seeking "employment" in the United States. He/she must, however, be coming to the U.S. to continue to work in the area of the foreign-born national's extraordinary ability. Thus, the foreign-born national must present employment offers, prearranged commitments, arrangements to engage in self-employment, or other evidence showing that he/she will continue to work in the area of his/her extraordinary ability.

Member of the professions include architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries, as well as those working in an y other occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.

Advanced degree means an academic or professional degree beyond the baccalaureate.

Or the equivalent means the possession of a bachelor's degree in the field, followed by at least five years of progressive experience in the specialty.

Individuals of exceptional ability:

Exceptional ability requires a degree of expertise significantly above that ordinarily encountered.

"The arts" includes athletics and entertainment.

REQUIREMENTS:

Exceptional ability in the arts, sciences, or business, demonstrated by a minimum of three of the following types of documentation relating to the filed of exceptional ability:

1. Official academic record demonstrating that the individual has earned degree(s).
2. Statement(s) from employer(s) demonstrating at least ten years of full-time experience in the field.
3. License or certification for professional practice.
4. Salary or other remuneration for services commensurate with that of a professional.
5. Membership in professional association(s).
6. Recognition by peers or government/professional entities for achievements and contributions.

National Interest Waiver

In order to obtain a national interest waiver, a petitioner must submit a form ETA-750 part B (Statement of Qualifications) together with evidence to support the claim that such an exemption would be in the national interest. The term national interest is not defined by statute or regulation and each case is judged on its own merit.

Under the decision in Matter of New York State Department of Transportation, 22 I & N Dec. 215 (AAO 1998), USCIS considers the following factors when evaluating a request for a national interest waiver:

1. The proposed employment is in an area that has substantial inherent value,
2. The proposed benefit to be provided by the applicant is national in scope,
3. The national benefit to be provided by the applicant outweighs the national interest in the labor certification process (i.e., testing the U.S. labor market to ensure that no U.S. worker is available to fill the position for which the applicant is to be hired).

National Interest Waiver for Physicians:

Special rules were established by statute and regulations for certain physicians who are willing to work full-time for five (5) years in medically underserved areas or at VA facilities. The Secretary of Health and Human Services (HHS) currently limits physicians in designated shortage areas to the practice of family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology and psychiatry.

REQUIREMENTS:

The petition must meet all documentary requirements of the EB-2 category such as petition with national interest waiver request, evidence of advanced degree or exceptional ability. In addition the following must be submitted:

• Full-time employment contract, employment commitment letter from a VA facility, or if self-employed, sworn statement committing to full-time practices of clinical medicine and steps taken to establish such practice.
• Evidence that the service will be provided in a medically underserved area designated by the HHS or a VA facility.
• Attestation from a Federal agency or state health department issued within six (6) months of the filing of the petition that the physician's work is or will be in the national interest.
• Evidence that the physician meets the admissibility requirements of INA sec. 212 (a)(5)(B) that requires graduates of an unaccredited medical school to have passed parts I and II of the National Board of Medical Examiners Examination (or an equivalent examination) and is competent in oral and written English.
• Evidence of USCIS-issued waiver if the physician has been a J-1 receiving medical training in the U.S.

REQUIREMENTS:

The common requirement for each subcategory is that the offered job must require a person with the stated qualifications (skilled work, membership in a profession, unskilled work) and the foreign-born national must have the required qualifications. For example, a member of one of the professions who holds a bachelor's degree would not qualify for EB-3 status if the proffered employment did not require a person with that qualification.