How Do I Get Immigrant Status Based on Employment?

How Do I Become an Immigrant Based on Employment?
An immigrant is a foreign national who is authorized to live and work permanently in the United States. You must go through a multi-step process to become an immigrant based on employment.

1) The INS must approve an immigrant petition (application) that was filed for you, usually by an employer.

2) In most employment categories, a U.S. employer must complete a labor certification request (ETA 750) for you from the Department of Labor's Employment and Training Administration.

3) The State Department must give you an immigrant visa number, even if you are already in the United States. Please see How Do I Get an Immigrant Visa Number?.

4) If you are already in the United States, you must apply to adjust to permanent resident status when a visa number becomes available. Please see How Do I Become a Lawful Permanent Resident while in the United States? If you are outside the United States when an immigrant visa number becomes available, you will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa.

For an excellent overview of immigration, please see the chapter and tables on immigrants in the INS Statistical Yearbook.

What Does the Law Say?
The legal foundation for getting approval for hiring an alien worker permanently comes from the Immigration and Nationality Act (INA). For the part of the law that addresses employment-based immigrants, please see INA ¤ 201, INA ¤ 202, INA ¤ 203 and INA ¤ 204. Rules published in the Federal Register explain the eligibility requirements for individuals petitioning for employment-based immigration based on specific criteria. They are in the Code of Federal Regulations [CFR] at 8 CFR ¤ 204.5.

Who is Eligible for Employment Based Immigration?
There are five categories of employment based immigration:

- First Preference (EB-1 priority workers): aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.

- Second Preference (EB-2 workers with advanced degrees or exceptional ability): aliens who are members of the professions holding advanced degrees or their equivalent and aliens who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.

- Third Preference (EB-3 professionals, skilled workers, and other workers): aliens with at least two years of experience as skilled workers, professionals with a baccalaureate degree, and others with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.

- Fourth Preference (EB-4 special workers such as those in a religious occupation or vocation): aliens who, for at least two years before applying for admission to the United States, have been a member of a religious denomination that has a non-profit religious organization in the United States, and who will be working in a religious vocation or occupation at the request of the religious organization.

- Fifth Preference (EB-5 Employment Creation): If you would like to be granted immigrant status in the United States for the purpose of engaging in a new commercial enterprise, for more information please email us at atorney@siliconiran.com.

How Do I File a Petition for Alien Worker?
An INS Form I-140 (Petition for Alien Worker) must be filed at the INS Regional Service Center that serves the area where you will work. Detailed information is provided in the instructions for Form I-140. Filing requirements differ for each category. Please see the appropriate link to Eligibility and Filing for each preference. If the worker is EB-1, click here. If the worker is EB-2, click here. If the worker is EB-3, click here.

For EB-4 special workers (those in a religious occupation or vocation), you or your employer must file INS FORM I-360 (Petition for Amerasian, Widow(er), or Special immigrant) at the INS Regional Service Center that serves the area where you will work. Please see EB-4 Eligibility and Filing for more information.

How Can I Find Out the Status of My Petition?
Please contact the INS office that received your application. You should be prepared to provide the INS staff with specific information about your application. Click here for complete instructions on checking the status of your application. Please click here for more information on INS offices.

How Can I Appeal?
If your Petition for Alien Worker is denied, the denial letter will tell you how to appeal. Generally, you may file a Notice of Appeal along with the required fee at the appropriate INS Regional Service Center within 33 days of receiving the denial. Once the fee is collected and the form is processed at the Service Center, the appeal will be referred to the Administrative Appeals Unit in Washington, D.C. Sending the appeal and fee directly to the AAU will delay the process. For more information, see How Do I Appeal?. Please click here for more information on INS offices.

Can Anyone Help Me?
If advice is needed, you may contact the INS District Office near your home for a list of community-based, non-profit organizations that may be able to assist you in applying for an immigration benefit. Please see INS field offices home page for more information on contacting INS offices.