February 6, 2018

Employment-Based Immigration


Key Takeaways

  • Employment-based green cards are available to people with extraordinary abilities, advanced-degree holders, multinational executives, certain professionals, and skilled workers.
  • In 2016, the U.S. granted around 140,000 employment-based green cards, which was approximately 12 percent of total green cards issued that year.
  • About five times as many people were awarded temporary employment-based visas that expire after a period of time.

Some recent reform proposals have centered on making the U.S. immigration system more “merit-based.” Many of these proposals would place more emphasis on providing for employment-based immigration and less on granting family-based and diversity-immigrant visas.

Examples from the Five Categories of Employment-Based Visas

Employment Based Visas

In 2016, the U.S. issued almost 1.2 million green cards, granting immigrants legal permanent residence and the opportunity to apply for citizenship in the future. Around 800,000 green cards – close to 70 percent of the total – went to people immigrating to the U.S. based on having relatives here. In contrast, about 140,000 green cards – less than 12 percent – were issued to immigrants for employment reasons, based on their skills, experience, and education and on the needs of U.S. employers. Of these 140,000 employment-based green cards, more than half went to the spouses and children of the primary applicants. So the number of green cards issued to people directly based on skills, experience, and education and on the needs of U.S. employers is closer to 6 percent of the overall total. More than 80 percent of all employment-based green cards were issued to people already in the country who were changing from a temporary visa to permanent residence – a process call “adjustment of status.”

Overview

The Immigration and Nationality Act provides five major categories – known as “preferences” – of green cards for people to immigrate to the U.S. for employment reasons. U.S. immigration law has provided for the admission of immigrants with special skills at least since the Immigration Act of 1924, which gave a preference to immigrants “skilled in agriculture.” The current preferences were created in 1990, when Congress also significantly increased the number of green cards available to employment-based immigrants. These preferences are:

  • EB-1 Visas (priority workers). These are green cards for people with “extraordinary” abilities that have “been demonstrated by sustained national or international acclaim,” “outstanding” professors and researchers who are “recognized internationally as outstanding in a specific academic area,” and multinational executives. About 40,000 EB-1 visas are available each year. People with extraordinary abilities may petition for themselves, while professors, researchers, and multinational executives must be sponsored by their employer.

  • EB-2 Visas (professionals with advanced degrees). This preference provides around 40,000 green cards annually to professionals, such as architects, lawyers, doctors, teachers, and engineers, with advanced degrees. The category also includes immigrants “who because of their exceptional ability in the sciences, arts, or business” will “substantially benefit” the “economy, cultural or educational interests, or welfare” of the United States. EB-2 visas are also available to physicians who agree to work full-time in areas with a shortage of doctors or at Veterans Affairs facilities. An EB-2 visa generally may be issued to an immigrant only if the Department of Labor determines that there are not enough U.S. workers who are “able, willing, qualified, ... and available at the time of application” and that the person will not “adversely affect the wages and working conditions” of U.S. workers. EB-2 visa applications must be sponsored by a U.S. employer.

  • EB-3 Visas (skilled and unskilled workers). These are visas for skilled and unskilled workers providing services that are not available from U.S. workers, and for professionals, such as engineers and teachers, who do not have advanced degrees. Like EB-2 visas, an EB-3 visa may be issued only upon a determination by the Department of Labor. Around 40,000 EB-3 visas may be issued annually, with only 10,000 visas currently available for unskilled workers. Applications for EB-3 visas must be sponsored by employers.

  • EB-4 Visas (special immigrants). About 10,000 visas are available for people such as religious workers, broadcasters, members of the armed services, and Afghani and Iraqi translators.

  • EB-5 Visas (immigrant investors). There are around 10,000 green cards available for immigrants who invest at least $500,000 in certain U.S. businesses.

Temporary Employment Visas

In addition to the employment-based green card programs that allow people to live permanently in the U.S., there are around 20 visa programs that allow people to live temporarily in the U.S. for employment reasons. Some of the better-known categories of these temporary employment-based visas include H-2A visas for temporary or seasonal agriculture workers and H-2B visas for temporary or seasonal non-agricultural workers like hotel employees in seasonal tourist destinations. Another significant category is H-1B visas for workers in occupations requiring the application of highly specialized knowledge, such as information technology and engineering.

Far more people receive temporary visas for employment every year than receive green cards. In 2016, about 530,000 people got H-1B, H-2A, and H-2B visas, including spouses and children. There were more than 750,000 temporary employee-based visas issued across all categories.

Waitlist and Per-Country Caps

The INA limits nationals of any single country to 7 percent of all family- and employment-based green cards issued annually. Immigrants who get an employment-based green card may bring their spouses and minor children to the U.S. These “derivative” entrants count against the green card limits.

When an employment-based green card preference is oversubscribed, prospective immigrants are put on a waitlist. As of November 2017, there were around 112,000 people on the waitlists for all employment-based green cards combined. Even if a preference category is not oversubscribed, nationals of some countries may face a wait because of the 7 percent per-country limit. This limit affects people from countries that send a lot of people to the U.S., such as China, India, and the Philippines. For instance, although there is no waitlist generally for EB-3 visas, the wait for EB-3 applicants from India is more than 10 years.

Issue Tag: Judiciary