Preference Categories

Employment-Based Preference Categories

There are five preference categories for employment-based immigration and some of the categories do not require the filing of a labor certification application. If an applicant qualifies for a preference category that does not require a labor certification application, then the LPR process is reduced to a two-step process that begins with the filing of a Form I-140 immigrant petition.  The following table provides an overview of the employment-based preference categories commonly used by Virginia Tech.  A detailed explanation of the labor certification application process and the preference categories follows the table.

CategoryEligibilityLabor Certification Required?
EB-1 Priority Worker Aliens of Extraordinary No
  Ability (may self-petition) Outstanding Professors No
EB-2 Members of the Professions with an Advanced Degree and Aliens of Exceptional Ability  Advanced degree professionals - master's degree or higher or the equivalent (bachelor's degree in the field with at least five years of progressive experience in the specialty) Yes
  Aliens of exceptional ability in the sciences, arts, or business Yes
  National Interest Waiver (may self-petition) No

 Labor Certification Applications

With limited exceptions, an employer sponsoring an employee for LPR status must, as a first step, obtain a labor certification from the U.S. Department of Labor (the “DOL”) that the employment in question will neither displace minimally qualified U.S. workers (or, in the case of college and university teachers, equally qualified U.S. workers) nor adversely affect wages and working conditions of U.S. workers.  The labor certification application entails a recruitment process in which the employer must satisfy the DOL that it made a good faith but unsuccessful effort to locate a qualified (or, when applicable, equally qualified) U.S. worker for the job offered to the employee.  The DOL has very detailed rules and procedures that the employer must follow to conduct its recruitment for the job, and many of these rules and procedures differ significantly from the procedures normally followed by the university when we recruit for positions.

It is critical for the department and the employee to understand, at the outset, that if the DOL approves a labor certification application for the job offered, that approval is valid only for the position described on the application and only in the geographic area of intended employment covered by the application.  In other words, from the time of filing the labor certification application through the approval of the Employee's application for U.S. permanent resident status (assuming that the labor certification application is approved), the Department must not materially change the offered job (including promotions, demotions or lateral changes) or transfer the Employee to a different city.     

If the department or the employee is now aware of any changes in the coming years that may affect the application, please advise us of those changes immediately.  Furthermore, from the time of filing the labor certification application through the approval of the Employee’s application for U.S. permanent resident status, please advise us of any such potential changes before they occur so we can evaluate their possible impact on the labor certification application.

There are two types of labor certifications applications: 1) The Basic Labor Certification Process, which can be used for positions in any occupation; and 2) The Optional Special Recruitment and Documentation Procedures for College and University Teachers, which, as its name suggests, is reserved for college and university teachers. The details of each process are described in the Basic PERM overview and the Special Handling PERM overview.

 Outstanding Professor/Researcher

The first preference employment-based category includes Outstanding Professors and Researchers and does not require a labor certification application. An Outstanding Researcher or Professor is an individual who is recognized internationally as outstanding in a specific academic area of teaching or research and who has at least three years of experience in teaching or research in the academic area. To qualify for this first preference employment-based category the individual must also have a job offer for: 1) a tenured or tenure-track position at a university or institution of higher education to teach in the academic field; 2) a comparable position with a university or institution of higher education to conduct research in the field; or 3) a comparable position to conduct research with a private employer if the employer employs at least three full-time researchers and the employer has achieved documented accomplishments in the academic field.

An offer of employment is required and the Form I-140 immigrant petition must be filed by the sponsoring employer on behalf of the non-U.S. worker beneficiary. An individual may not self-petition under this category. An individual must demonstrate that he or she is recognized internationally as an outstanding professor or researcher by submitting evidence of at least two of the following six criteria:

  1. Receipt of major prizes or awards for outstanding achievement in the academic field;
  2. Membership in an association which require outstanding achievements in the academic field;
  3. Published material in professional publications written by others about the individual’s work in the academic field;
  4. Participation as a judge of the work of others in the same or an allied field. Participation may be as an individual or as a member of a panel of judges;  
  5. Original scientific or scholarly research contributions to the academic field; or
  6. Authorship of scholarly books or articles, in scholarly journals with international circulation, in the academic field.

Submission of evidence of two of the six criteria listed above is minimally required to qualify for this category. However, meeting two of the above six criteria does not automatically qualify an applicant as an outstanding professor or researcher and USCIS may require additional evidence. This is because the evidence submitted may in some instances be insufficient to show international recognition.

 Individuals of Extraordinary Ability

The first preference employment-based category of individuals of extraordinary ability does not require a PERM labor certification application.  

Individuals of extraordinary ability are those with extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim as evidenced through extensive documentation, who seek to enter the U.S. to continue to work in the area of extraordinary ability and whose entry into the U.S. will substantially benefit the U.S. This category is intended for the small percentage of individuals who have risen to the very top of the field of endeavor, and whose achievements have been recognized in the field of expertise.

An offer of employment is not required for this category, although the individual must demonstrate that he or she will continue to work in the field of extraordinary ability. An individual may therefore self-petition under this category and file his or her own I-140 immigrant petition, which is typically otherwise filed by an employer on behalf of the sponsored non-U.S. worker.

To qualify for this category as an individual of extraordinary ability, an applicant may present evidence of a one-time achievement, such as the receipt of an internationally recognized award like the Nobel Prize or an Academy Award. However, more commonly, an individual must demonstrate his or her extraordinary ability on the basis of a career of acclaimed work in the field of endeavor by submitting evidence of at least three of the following ten criteria:

  1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
  2. Membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
  3. Published material in professional or other major trade publications or major media, relating to the individual’s work in the field;
  4. Participation as a judge of the work of others in the same or an allied field. Participation may be as an individual or as a member of a panel of judges;
  5. Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
  6. Authorship of scholarly articles in the field, in professional or major trade publications or other major media;
  7. Display of the individual’s work in the field at artistic exhibitions or showcases;
  8. Performance in a leading or critical role for organizations or establishments that have a distinguished reputation;
  9. High salary or other significantly high remuneration for services, in relation to others in the field; or
  10. Commercial success in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales.

The applicant must prove his or her extraordinary ability in the relevant field. Submission of evidence of three of the ten criteria listed above is minimally required to qualify for this category.  However, meeting three of the above ten criteria does not automatically qualify an applicant as an individual of extraordinary ability and USCIS may require additional evidence. This is because the evidence submitted may in some instances be insufficient to show sustained or international acclaim. 

In circumstances where the above criteria do not readily apply to an occupation, immigration regulations permit the individual to submit comparable evidence to establish his or her extraordinary ability in the field.

 National Interest Waivers

The national interest waiver category falls within the second preference employment-based category, which is available to individuals with advanced degrees. USCIS may waive the regular labor certification requirement for employment based immigration for the designated beneficiary, if it is in the national interest of the U.S.
 
USCIS considers many factors in determining whether or not the waiver of the labor certification requirement is in the national interest of the U.S. The factors include but are not limited to, whether or not the grant of a waiver will result in:

  1. Improving the U.S. economy;
  2. Improving wages and working conditions in the U.S. economy;
  3. Improving education for U.S. children and under qualified workers;
  4. Improving health care;
  5. Providing more affordable housing;
  6. Improving the environment; or
  7. When an interested government agency supports the request.

To demonstrate national interest, you must present proof that the beneficiary’s work: 1) Is in an area of substantial intrinsic merit; 2) provides a benefit that is national in scope; and 3) serves the national interest to a substantially greater degree than an available U.S. worker having the same minimum qualifications. The crux of a national interest petition is often met by demonstrating one's outstanding contributions through supporting testimonial letters from experts in the field. An offer of employment from a U.S. employer is not required for this category. An individual may self-petition under this category.

 Advance Degree Professionals and Individuals of Exceptional Ability

The second preference employment-based category includes Advance Degree Professionals and Individuals with Exceptional Ability in the Sciences, Arts, or Business.  An offer of employment from a US employer and a labor certification are required, unless the USCIS has determined that it is in the national interest to waive the job offer and labor certification requirement.  (see above)  Members of the professions holding and advanced degree or its equivalent, or who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or economic interests, or the welfare of the US and whose services are sought by a US employer may qualify for this category.  The job offered to the foreign national must require and advanced degree and the foreign national must possess the advanced degree or its equivalent.  An advanced degree is as a master’s degree or above.  The equivalent of an advanced degree is a bachelor’s degree and five years of progressively responsible post-degree experience in the specialty.

An offer of employment is required and a labor certification application and the Form I-140 immigrant petition must be filed by the sponsoring employer on behalf of the non-U.S. worker beneficiary. An individual may not self-petition under this category. To qualify as an individual of exceptional ability an individual must demonstrate that he or she possess a degree of expertise significantly above that ordinarily encountered by submitting evidence of at least three of the following six criteria:

  1. An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
  2. Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
  3. A license to practice the profession or certification for a particular profession or occupation;
  4. Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
  5. Evidence of membership in professional associations; or
  6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations
 
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