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The employment-based immigration system allows immigrants who have skills and talents needed in the United States to be admitted to work. Currently, immigration law allots 140,000 employment-based immigrant visas annually.
How Does the System Work?
In most cases, a worker must have an employer petition the Bureau of Citizenship and Immigration Services on his or her behalf. Some workers?priority workers, investors, and certain special immigrants?may petition on their own behalf. Employment-based visas are divided into the following categories:
1ST PREFERENCE: About 40,000 visas a year (28.6% of the employment preference total) may be issued to priority workers?people who have "extraordinary ability," are "outstanding professors and researchers," or are "certain multinational executives and managers." Any unused visas from the fourth and fifth preferences are added to this category.
2ND PREFERENCE: About 40,000 visas a year (28.6% of the total, plus any visas left over from the first preference) may be issued to persons who are "members of the professions holding advanced degrees or aliens of exceptional ability."
3RD PREFERENCE: About 40,000 visas a year (28.6% of the employment total, plus any visas left over from the first and second preferences) may be issued to skilled workers, professionals, and other workers. The "other workers" category covers workers who are "capable of performing unskilled labor," and who are not temporary or seasonal. Workers in this category are limited to 5,000 visas per year. Skilled workers must be capable of performing skilled labor requiring at least two years training or experience.
4TH PREFERENCE: About 10,000 visas a year (7.1% of the employment preference total) may be issued to certain special immigrants, including ministers, religious workers, and others.
5TH PREFERENCE: About 10,000 visas a year (7.1% of the total) may be issued to persons who will invest between $500,000 and $3 million in a job-creating enterprise. At least ten U.S. workers must be employed by each investor. The amount of money varies depending on which area of the country will benefit from the investment.
As with family-sponsored immigrants, employer-sponsored immigrants must submit extensive information about their identities and histories, and are screened for any past criminal activity before being issued green cards.
How are U.S. Workers Protected?
Before visas can be issued in the second and third preference categories, the employer must obtain a "labor certification" from the U.S. Department of Labor confirming that there are not sufficient U.S. workers who are able, qualified, and willing to perform the work. The Labor Department must also confirm that employment of the alien will not adversely affect the wages and working conditions of U.S. workers. When applying for a labor certification, the employer must provide notice to the union representing the employer's employees or to other workers at the site. Any member of the public may challenge an application for a labor certification by showing that sufficient U.S. workers are available to perform the work, or by demonstrating that the employer is offering wages or working conditions that adversely affect U.S. workers.
What are Temporary Workers?
In addition to visas given to those coming to the U.S. to live permanently, visas are also given to individuals coming to the U.S. to fill the temporary needs of U.S. employers.
One category of non-immigrant worker visa is the "H-1B" visa given to highly-skilled individuals for a renewable period of three years. Many of these workers are employed in computer-related fields. In fiscal year 2005, there is a cap of 65,000 of these temporary visas for foreign professionals. However, up to 20,000 H-1B visas can be issued outside of this cap to graduates of U.S. universities who have earned at least a masters degree. Companies of more than 25 employees applying for H-1B temporary workers must pay a fee of $1,500 per worker ($750 per workers for smaller employers), most of which is used for education and training programs for U.S. workers so that they might eventually fill the labor gaps. There are also processing and ?anti-fraud? fees.
Another category of visa issued to temporary non-immigrant workers is the H-2 visa. H-2A visas are issued to temporary or seasonal agricultural workers. H-2B visas are issued to temporary or seasonal workers in industries other than agriculture. (A ski resort, for example, might seek H-2B workers during ski season, if American workers are not sufficiently available.) There is an annual limit of 66,000 visas that may be issued to H-2B workers. Employers wishing to bring in workers under the H-2 visa category must demonstrate that the workers? duties are temporary or seasonal, and that their employment will not displace American workers or adversely affect their wages.
Persons being brought to the U.S. by employers seeking to fill temporary jobs must fill out a visa application in which they must account for potential problems in their history, such as criminal activity, past visa problems, or affliction with a communicable disease. In most cases, they also must provide evidence that they are not intending to immigrate permanently to the U.S.
Insufficient Number of Visas Available
The number of visas available for workers able to meet the needs of American employers is insufficient in several visa categories. This is most notable in the category reserved for workers coming to fill jobs that don?t require high skills. Only 5,000 visas are available per year for permanent workers (a subset of the 3rd preference), and this has created a demand for the labor of undocumented immigrants. In recent years, there has been greater demand for temporary workers than the current annual cap accommodates. In Fiscal Year 2005, U.S. Citizenship and Immigration Services anticipates that before the end of the first half of the year, the 66,000 visas for seasonal or temporary visas will have been used. For skilled workers, the cap for temporary visas (H-1B) was reached on the first day of the Fiscal Year for 2005 (though Congress since revised the law to allocate an additional 20,000 visas).
Revised January 2005