The Fairness for High-Skilled Immigration Act (H.R. 3012): First-Come-First-Served - The Prospective of New Law and the Three Employment-based Preferences
by Victoria Chen, Esq., J.D.
Overview
On November 29, 2011, the House of Representatives nearly unanimously (389 to 15) voted for a bill that would change the entire visa system for high-skilled immigrants after a three-year transition period. Effectively, per country limits would be eliminated, meaning that green cards would be granted on a "first-come-first-serve" basis, rather than each country being limited to seven percent of the 140,000 green cards available each year. Foreign nationals from countries like India and China should be thrilled with this news. However, for those from "the rest of the world", this means that competition for visas has now risen substantially. The bill must still be passed by the Senate.
I'm from India or China, What does HR 3012 Mean to Me
Highly-skilled immigrants from India and China are by far the biggest beneficiaries of the bill. Not only will immigrants from India and China receive their visas more quickly, they will also be many more visas available each year. In addition, since companies will be aware of this same news, recruiting efforts in each country will most likely be increased, and those who are already working for American corporations may be more capable to stay employed in those jobs in the United States. Journalist Julia Preston, New York Times, notes "American technology companies have been clamoring for Congress to offer more green cards for their foreign employees, arguing that the United States was losing out in global competition by forcing those immigrants to leave."
I am from "the rest of the world", What does HR 3012 Mean to Me
Despite the seemingly enormous problem this presents for those not from countries like India or China, this bill is not the end of "the rest of the world." What this bill does mean is that you will have an increasing pool of competition, thus it has never been as important to understand the system, and to consult an attorney to develop specific strategies to stand out in the growing crowd. Below, I have explained three of the petition preference classifications, and I have discussed what each means to you, so that you may start to develop an idea of where you fit, and the appropriate strategy to match your classification.
Employment-Based Immigration: First Preference (EB-1)
The first preference of employment-based immigration visa classification is known as "EB-1." This classification is reserved for foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; or multinational executives or managers. Each of the above categories has certain requirements that must be met, but all of the categories have high standard of law to meet. EB1A requires one to have risen to the very top percentile of their field of expertise, EB1B requires one to be international acclaimed outstanding and EB1C requires one to act with managerial or executive capacity in both a foreign entity and prospectively a U.S. entity.
One should note that the USCIS has a reputation of holding extremely high standards for this preference, and if your petition should not be approved on the first submission, a very small percentage of appeals are approved. The upside of this category is that all visas are current no matter which country the petitioner/beneficiary is from and there is no labor certification required, meaning that the employer and petitioner do not need to seek a national interest waiver or show that another United States worker with the same minimum qualifications cannot be found and that wages of other workers will not be affected.
Employment-Based Immigration: Second Preference (EB-2)
The second preference of employment-based immigration visa classification is known as EB-2. This classification is for members of professions holding an advanced degree or its equivalent (Baccalaureate plus five years of relevant work experience); or a foreign national who has exceptional ability in the sciences, arts, education, business, or athletics. In this category, one must attain a national interest waiver, which waives the labor certification requirement, and one must also comply with other criteria. Some of these criteria include an academic record showing adequate degrees, diplomas, certificates, or equivalent award; letters documenting at least 10 years of full-time experience in field of endeavor; a license or certification to practice your profession; evidence of high salary matching exceptional ability; membership in professional associations; and recognition of achievements and significant contributions to the industry or field by peers, government entities, or other professional organizations.
The standards by which immigration officers assess this petition classification are lower than that of the EB-1 classification. Although, one must obtain a national interest waiver through this classification in order to waive a labor certification in addition to demonstrating one's significant contributions the individual field of endeavor.
Employment-Based Immigration: Third Preference (EB-3)
The third preference of employment-based immigration visa classification is known as EB-3. This classification is available for skilled workers (persons whose job requires a minimum of 2 years training or work experience); professionals (persons whose job requires at least a U.S. baccalaureate degree or the foreign equivalent); or other workers (persons performing unskilled labor requiring less than 2 years training or experience). The USCIS does not outline any additional criteria for this classification other than the labor certification requirement, meaning that one must prove that the work is not temporal or seasonal in nature and that you are performing work for which qualified workers are not available in the United States.
The standards by which the USCIS assesses petitions under this certification are even lower than the second preference; however, a national interest waiver is not available in this classification. In addition, one must provide evidence of a full-time job offer at the time the petition is submitted.
Conclusion
Selecting the appropriate classification is one of the most important decisions you will need to make before retaining the services of an attorney or applying for a permanent residency visa. Each classification has different criteria and different standards by which the USCIS evaluates petitions. Choosing the optimal category before you develop the petition's strategies and arguments can ensure your petition has the best odds for approval. In light of the new legislation, it is beneficial to think of the preference categories as a spectrum. One of end you have the EB-3 classification with the most competition and the lowest standards, and on the other end you have the EB-1 classification with the least competition and the highest standards for approval. If you decide where you fit on the spectrum, it will be easier to decide which classification to seek, and what arguments and evidence you will need to provide. We at Chen Immigration Law Associates are here to help. Contact us for free evaluation today at,law@wegreened.com