LABOR CERTIFICATIONS & EMPLOYMENT-BASED PETITIONS      back to list

The initial step for obtaining employment-based permanent residence ("green card") for most people is called labor certification, a process with numerous complexities and potential pitfalls designed to protect the U.S. labor market. Labor certification, which is governed by extensive and complex regulations known as PERM (Program Electronic Review Management), requires the sponsoring employer to conduct a test of the U.S. labor market for the position it wishes to offer a foreign worker. If after conducting appropriate recruitment activities, no willing or qualified U.S. workers are available for the position, a labor certification application may be submitted to the U.S. Department of Labor ("DOL"). The regulations contain specific requirements governing the types and timing of advertisements and other recruitment that must be conducted as well as parameters regarding the wage that must be offered for the position. Once a permanent labor certification has been obtained, the sponsoring employer may request an immigrant visa on behalf of the foreign worker.

The new PERM regulations, implemented March 28, 2005, have streamlined the labor certification process and eliminated other methods. PERM, which allows electronic submission of applications, is an attestation driven system intended to reduce case processing times dramatically - with estimated case processing time within approximately 45 to 60 days. Some number of PERM cases are selected by DOL for audit, however, which typically results in case processing times well beyond the 45- to 60- day estimate. Cases filed under the previous labor certification system, including standard (in which the state workforce agency conducted supervised recruitment after case filing) and reduction in recruitment (in which employers conducted pre-filing recruitment) often remained pending for years. In fact, many of the standard and RIR cases that were pending as of the implementation of PERM remain unadjudicated at DOL Backlog Processing Centers, causing considerable frustration for employers and foreign workers.

Labor certification is required for most employment-based second (EB-2) and third (EB-3) preference categories. This includes foreign workers with exceptional ability in the sciences, arts, or business and aliens with advanced degrees in professional fields (with a few exceptions), aliens with bachelor's degrees, skilled workers, and unskilled workers.

There are several employment-based immigrant visa categories that do not require labor certification or where the labor certification requirement may be waived. "Schedule A" occupations, including nurses and physical therapists and aliens of exceptional ability in the sciences, performing arts, or arts, have been pre-certified by the DOL as occupations that have an ongoing shortage of U.S. workers and, therefore, do not require individual labor certification. In the EB-2 category, for professionals with advanced degrees and persons of exceptional ability, labor certification may be waived if it can be established that the alien's work in the U.S. will be in the national interest. This is known as a "national interest waiver." Also, labor certification is not required for immigrant visa categories such as employment-based first preference (EB-1) "priority workers," certain religious workers, and investors in new enterprises.

If labor certification is required, the date the application is filed with DOL is used by U.S. Citizenship and Immigration Services ("USCIS") and the Department of State as the "priority date," which determines the applicant's place in line to obtain an immigrant visa. If labor certification is not required, the priority date is the date of submission of the I-140 Immigrant Petition for Alien Worker to USCIS. Priority date issues are becoming increasingly important as high levels of demand for immigrant visas has caused backlogs for certain types of employment-based immigrant visas, particularly for nationals of India, China, Mexico and the Philippines.

After the labor certification application is approved by the DOL, if required, it may be submitted to USCIS by the sponsoring employer together with an I-140 Petition. Categories which do not require DOL approved labor certification require submission of the I-140 Petition and supporting documentation to USCIS only.

Developing an immigrant visa strategy that meets the needs of businesses and foreign workers and takes into consideration the complex web of regulatory requirements, the potential impact of agency delays and immigrant visa availability, and creatively assesses the potential immigration options available to a foreign worker is of critical importance to ensuring successful achievement of the desired immigration benefit.

Paparelli & Partners LLP will work with your company to plan how best to leverage the immigration laws and the new PERM regulations to achieve your business goals and avoid common pitfalls. Paparelli & Partners are experts in preparing labor certification applications and employment-based petitions of all types. We can help you to assess your employment needs, meet legal requirements, prepare and review necessary documentation, and establish and maintain work authorization or immigration status for your employees.

Click on the links below to view the major requirements and restrictions and eligibility information for each category.

A. EB-1-1 extraordinary ability in the sciences, arts,
education, business, or athletics (first preference)
B. EB-1-2 outstanding professors and researchers (first preference)
C. EB-1-3 multinational executives and managers (first preference)
D. EB-2-1 professionals holding advanced degrees (second preference)
E. EB-2-1 professionals holding advanced degrees,
with request for Schedule A (second preference)
F. EB-2-1 exceptional ability in the sciences, arts,
or business (second preference)
G. EB-2-1 national interest waivers for professionals
holding advanced degrees (second preference)
H. EB-2-1 national interest waivers for exceptional
ability in the arts, sciences, or business (second preference)
I. EB-2 exceptional ability in the sciences or arts (with Schedule A request) (second preference)
J. EB-3 skilled workers (third preference)
K. EB-3 professionals holding a baccalaureate (third preference)
L. EB-3 other workers (third preference)
M. EB-4 special immigrant (fourth preference)
N. EB-5 employment creation (fifth preference)

A.    EB-1-1 extraordinary ability in the sciences, arts, education, business, or athletics (first preference).

Major requirements and restrictions of the EB-1-1 visa category:
· Extraordinary ability as demonstrated by sustained national or international acclaim
· Achievements recognized in the field of expertise through extensive documentation
· Entering the U.S. to continue work in the area of extraordinary ability
· Entry will substantially benefit prospectively the U.S.
· Petitioning employer not required, may self-petition
· Labor certification not required
· File Form I-140 (Petition for Immigrant Worker) with supporting documentation

Additional eligibility information:
· Extraordinary ability means one of that small percentage who has risen to the very top of his or her field of endeavor.
· Establish extraordinary ability through award of a major, international prize or by fulfilling at least three of the 10 categories in 8 CFR §204.5(h)(3) or by submitting comparable evidence, including:
(1) receipt of a nationally or internationally recognized award for excellence;
(2) membership in outstanding national or international organizations which require outstanding achievements of members;
(3) published material about the beneficiary's work;
(4) peer review of others' work;
(5) original scientific or scholarly contributions;
(6) authorship of published articles;
(7) display of work;
(8) performance in a critical role for distinguished organizations;
(9) receipt of comparatively high salary; or
(10) commercial success of work

B.    EB-1-2 outstanding professors and researchers (first preference).

Major requirements and restrictions of the EB-1-2 visa category:
· Recognized internationally as outstanding in a specific academic area
· Minimum of 3 years of experience in teaching or research in the academic area
· Job offer for tenured teaching position or comparable research position within a university or higher education institution or accomplished business entity with 3 full-time researchers required
· Labor certification not required
· File Form I-140 (Petition for Immigrant Worker) with supporting documentation

Additional eligibility information:
· Academic field means a body of specialized knowledge offered for study at an accredited U.S. university or higher education institution
· Establish outstanding international recognition by fulfilling at least two of the six categories in 8 CFR §204.5(i)(3) including:
(1) receipt of a major award for outstanding achievement;
(2) membership in outstanding academic associations which require outstanding achievements of members;
(3) published material about the beneficiary's work;
(4) peer review of others' work;
(5) original scientific or scholarly research contributions; or
(6) authorship of published books or articles

C.    EB-1-3 multinational executives and managers (first preference)

Major requirements and restrictions of the EB-1-3 category:
· Employed for at least one of three preceding years by overseas affiliate, parent, subsidiary, or branch of the prospective U.S. employer in a managerial or executive capacity
· Job offer from qualifying U.S. employer for managerial or executive position required
· Labor certification not required
· Employer files Form I-140 (Petition for Immigrant Worker) and supporting documentation

Additional eligibility information:
· Executive capacity means primarily directing the management of the organization or a major component or function, establishing goals and policies, discretionary decision-making, and general supervision from higher level executives
· Managerial capacity means primarily managing the organization, department, subdivision, critical business function or component, supervising other supervisory, professional, or managerial employees or managing an essential function, with hire/fire authority, and discretion over management of day-to-day operations

D.    EB-2-1 professionals holding advanced degrees (second preference).

Major requirements and restrictions of the EB-2-1 visa category:
· Advanced degree holder
· Job offer required
· Employer must obtain approved labor certification from the Department of Labor
· Employer files Form I-140 (Petition for Immigrant Worker) with approved labor certification application

Additional eligibility information:
· Executive capacity means primarily directing the management of the organization or a major component or function, establishing goals and policies, discretionary decision-making, and general supervision from higher level executives
· Managerial capacity means primarily managing the organization, department, subdivision, critical business function or component, supervising other supervisory, professional, or managerial employees or managing an essential function, with hire/fire authority, and discretion over management of day-to-day operations

E.    EB-2-1 professionals holding advanced degrees, with request for Schedule A (second preference).

Major requirements and restrictions of the EB-2-1 (with request for Schedule A) visa category:
· Advanced degree holder
· Job offer required
· Labor certification approved by Department of Labor not required
· Employer files Form I-140 (Petition for Immigrant Worker) and request for Schedule A designation (i.e. completed uncertified Form ETA 750, in duplicate)

Additional eligibility information:
· Advanced degree means higher than a baccalaureate, or a baccalaureate and five years of progressive experience in the profession
· Profession means any occupation for which a U.S. baccalaureate or equivalent is the minimum requirement
· Recommended that petitions by foreign degree holders include a U.S. education equivalency evaluation
· Fulfill at least two categories in 20 CFR §656.22(d); i.e.:
(1) receipt of an internationally recognized award for excellence;
(2) membership in outstanding international organizations;
(3) published material about the beneficiary;
(4) judge of others' work;
(5) original scientific or scholarly contributions;
(6) published articles; or
(7) international display of work é

F.    EB-2-1 exceptional ability in the sciences, arts, or business (second preference).

Major requirements and restrictions of the EB-2-1 visa category:
· Exceptional ability in arts, sciences, or business
· Entry will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the U.S.
· Job offer required
· Employer files Form I-140 (Petition for Immigrant Worker) and labor certification approved by the Department of Labor

Additional eligibility information:
· Exceptional ability means expertise significantly above that ordinarily encountered within the field
· Establish exceptional ability by fulfilling at least 3 of the 6 categories in 8 CFR §204.5(k)(3)(ii) or by submitting comparable evidence, including:
(1) degree in area of exceptional ability
(2) employment letters verifying at least 10 years of experience
(3) license to practice profession
(4) receipt of comparatively high salary
(5) membership in professional associations
(6) recognition for significant achievements or contributions to the field

G.    EB-2-1 national interest waivers for professionals holding advanced degrees (second preference).

Major requirements and restrictions of this category:
· Advanced degree holder, i.e., beyond a baccalaureate, or a baccalaureate and five years of progressive experience in the profession
· Services in the sciences, arts, professions, or business are in the national interest
· Petitioning employer is not required
· Labor certification not required
· File Form I-140 (Petition for Immigrant Worker) and request for Schedule A designation (i.e. completed uncertified Form ETA 750, in duplicate)

Additional eligibility information:
· See:
In re New York State Dept of Transportation, Int. Dec. (AAU) #3363 Matter of [name not provided], EAC 92 091 50126 (AAU July 21, 1992), commonly referred to as Mississippi Phosphate Laila Mnayer v. INS, U.S. Dist., S. Dist. Fl., LEXIS 21932 (1995)
· Fulfill at least two categories in 20 CFR §656.22(d)

H.    EB-2-1 national interest waivers for exceptional ability in the arts, sciences, or business (second preference).

Major requirements and restrictions of this category:
· Exceptional ability in arts, sciences, or business; i.e., expertise significantly above that ordinarily encountered within the field
· Will substantially benefit prospectively the national economy, cultural or educational interest, or welfare of the United States
· Petitioning employer is not required
· Labor certification not required
· File Form I-140 (Petition for Immigrant Worker) and completed, uncertified Form ETA-750 (part B only)

Additional eligibility information:
· See:
In re New York State Dept of Transportation, Int. Dec. (AAU) #3363
Matter of [name not provided], EAC 92 091 50126 (AAU July 21, 1992), commonly referred to as Mississippi Phosphate
Laila Mnayer v. INS, U.S. Dist., S. Dist. Fl., LEXIS 21932 (1995)
· Fulfill at least two categories in 20 CFR §656.22(d)

I.    EB-2 exceptional ability in the sciences or arts (with Schedule A request) (second preference).

Major requirements and restrictions of this category:
· Practice science or art requiring exceptional ability for the past year and intend to practice same science or art requiring exceptional ability in the U.S.
· Widespread acclaim and international recognition by recognized experts in the field
· College or university study is not required
· Job offer is required
· Labor certification approved by Department of Labor not required
· File Form I-140 (Petition for Immigrant Worker) and request for Schedule A designation (i.e. completed uncertified Form ETA 750, in duplicate)

Additional eligibility information:
· Science or art means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill
· Fulfill at least 2 categories in 20 CFR §656.22(d); i.e.:
(1) receipt of an internationally recognized award for excellence
(2) membership in outstanding international organizations
(3) published material about the beneficiary
(4) judge of others' work
(5) original scientific or scholarly contributions
(6) published articles
(7) international display of work

J.    EB-3 skilled workers (third preference).

Major requirements and restrictions of this category:
· Permanent position must require and beneficiary must have at least two years of training or experience
· Job offer required
· Employer files Form I-140 (Petition for Immigrant Worker) and labor certification approved by the Department of Labor, or request for Schedule A designation (i.e. Form ETA 750, in duplicate)


Additional eligibility information:
· The requirements of the job offer as stated on Form ETA-750A determine whether a job is skilled or unskilled
· A position with a Specific Vocational Preparation code of at least 6 is a skilled job
· If the position is pre-certified under Schedule A, evidence to demonstrate that the job requires 2 years of experience

K.    EB-3 professionals holding a baccalaureate (third preference).

Major requirements and restrictions of this category:
· Members of a profession possessing a U.S. university bachelor's degree or foreign equivalent
· Position must normally require a bachelor's degree or equivalent
· Job offer is required
· Employer files Form I-140 (Petition for Immigrant Worker) and labor certification approved by the Department of Labor, or request for Schedule A designation (i.e. completed uncertified Form ETA 750, in duplicate)

Additional eligibility information:
· Experience and education may not substitute for a bachelor's degree

L.    EB-3 other workers (third preference).

Major requirements and restrictions of this category:
· Capable of filling a position requiring less than two years of training or experience
· Permanent position
· Job offer is required
· Employer files Form I-140 (Petition for Immigrant Worker) and labor certification approved by the Department of Labor, or request for Schedule A designation (i.e. completed uncertified Form ETA 750, in duplicate)

Additional eligibility information:
· Not a viable option for most people; visas in this category are projected to be unavailable for at least five years

M.    EB-4 special immigrant (fourth preference).

Major requirements and restrictions of this category:
· File Form I-360 (Petition for Amerasian, Widow, or Special Immigrant)
· Beneficiary of an approved Form I-360 or an approved Form DS-1884 for overseas employees of the U.S. government
· Must be either a religious worker, an overseas employee of the U.S. government, a former employee of the Panama Canal Co., a retired employee of an international organization, a dependent of an international organization employee, or a member of the U.S. armed forces

Additional eligibility information:
· This category covers only permanent, not temporary, religious workers

N.    EB-5 employment creation (fifth preference).

Major requirements and restrictions of this category:
· File Form I-526 (Immigrant Petition by Alien Entrepreneur)
· Invest between U.S. $500,000 and $1,000,000 depending on geographical area or rural non-rural nature of place of investment, in a new U.S. commercial enterprise creating 10 new full-time jobs for qualified U.S. workers

Additional eligibility information:
· Expect close scrutiny. Leads to conditional permanent residence. Alien within two years of obtaining conditional status must apply to remove conditions (thus making permanent resident status unconditional). To remove condition, alien investor must show that investor sustained required investment amount and 10 jobs for U.S. workers