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The Immigration and Nationality Act provides 140,000 employment-based immigrant visas yearly. These available visas are divided among five preference categories, as follows:
Priority Workers receive 28.6 percent of the annual worldwide limit (about 40,000 visas). All Priority Workers must be the beneficiaries of an approved Immigrant Petition for Foreign Workers.
There are three sub-groups in this category:
There are two subgroups within this category: Professionals holding an advanced degree (beyond a baccalaureate degree) or a baccalaureate degree and at least five years’ progressive experience in the profession. PERM Labor Certification and a job offer are required for this category unless the job offer is waived by the USCIS in the national interest.
This category covers “Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers.” All Third Preference applicants require an approved petition filed by the prospective employer. All such workers require labor certification. There are three subgroups within this category:
Special Immigrants receive 7.1 percent of the yearly worldwide limit. All such applicants must be the beneficiary of an approved I-360, Petition for Special Immigrant, except overseas employees of the U.S. Government who must use Form DS-1884. Among the types of individuals who qualify under this preference are:
Religious workers coming to carry on the vocation of a minister of religion, or to work in a professional capacity in a religious vocation, or to work for a tax-exempt organization affiliated with a religious denomination;
Employment Creation Investors receive 7.1 percent of the yearly worldwide limit. To qualify, an alien must invest a minimum of either U.S. $500,000 or $1,000,000, depending on the employment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.
The filing date of a petition is the applicant’s priority date. For the latest priority dates, check the U.S. Department of State Visa Bulletin.
The Adjustment of Status application is filed by an alien who is physically in the United States to adjust his/her non-immigrant status or no status at all to immigrant status, (i.e. permanent resident status). Presently USCIS allows an alien to concurrent file an Adjustment of status application with an Immigration petition (EB-1, EB-2, and EB-3).
Once the application is approved, the alien becomes a permanent resident of the United States. In addition, there are four other major benefits: the first is that the alien may simultaneously apply for Advanced Parole; the second is that the alien may also apply for an Employment Authorization Document (EAD); the third is that the alien whose Adjustment of status petition is employer-sponsored, (e.g., EB-1B, EB-1C, EB-2 (except under NIW), and EB-3), may change employers six months after the filing of adjustment of status (visa the “portability rule”); and the fourth is that applying for employment-based adjustment of status gives the alien legal pending status to stay in the U.S. lawfully while waiting for the adjudication of his/her case, which is the major advantage utilized by many.
The Advanced Parole document allows the alien to travel abroad during the pending period of his or her adjustment of status application, without abandoning the application.
The EAD allows the alien to work for any employer in the United States during the pending period of his or her adjustment of status application.
The portability rule allows the alien whose I-485 is employer-sponsored to change employer six months after the filing of the adjustment of status application as long as the petition is still pending and the new job is in the same or similar occupational classification as the job for which the petition was filed. In the following paragraphs, we will discuss in detail how those noted benefits might affect the alien’s H-1 or L-1 status.
H-1 or L-1 holders whose I-140 are not employer-sponsored : For those aliens who are on H-1 or L-1 status and whose I-140 is not employer-sponsored, i.e., EB-1(a) and EB-2 (NIW), it is advisable to keep their H-1 or L-1 nonimmigrant status during the I-485 pending period so that even in the case the I-485 application gets denied, they can still lawfully stay in the United States.
To maintain their H-1 or L-1 status, aliens are suggested to use H-1 or L-1 visa (obtained through visa revalidation process or consular process) to reenter into the U.S. after traveling abroad. To safeguard their return to the U.S., aliens should apply for Advanced Parole before their departure. Once they are paroled in, aliens need to resume employment with the same employer for whom they had previously been authorized to work as an H-1 or L-1 non-immigrant; otherwise they will lose their H-1 or L-1 status.
H-1 or L-1 holders whose I-140 are employer-sponsored : For those aliens who are on H-1 or L-1 status and whose I-140 petitions are employer-sponsored, i.e., EB-1(b), EB-2 (except NIW), and EB-3, it is also advised that they maintain valid H-1 or L-1 non-immigrant status during the I-485 pending period, because it will allow them to lawfully stay in the U.S., even in the case that their I-485 applications are denied.
To maintain their H-1 or L-1 status, aliens under this category are suggested to utilize Advanced Parole and EAD the same way as those whose I-140 are employer-sponsored, as discussed in paragraphs above.
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