Every fiscal year (October 1—September 30), approximately 140,000 employment-based immigrant visas are made available to qualified applicants under the provisions of U.S. immigration law.
Employment-based immigrant visas are divided into five preference categories (see below) and are often referred to as "E1" or "EB-1" for example—meaning employment or employment-based, followed by the category number.
Certain spouses and children may accompany or follow to join employment-based immigrants.
Form I-140, Immigrant Petition for Alien Worker
For most of the categories of immigrant visas, you may use Form I-140, Immigrant Petition for Alien Worker, to ask United States Citizenship and Immigration Services (USCIS) to classify an alien as someone who is eligible for an immigrant visa based on employment. The employer generally files the Form I-140 for the alien (person who is not a citizen or national of the United States).
For category E4 (see below), you may use Form-360, Petition for Amerasian, Widow(er), or Special Immigrant.
To be considered for an E5 immigrant investor visa, an applicant must file Form I-526, Immigrant Petition by Alien Entrepreneur, with USCIS.
Categories
Employment First Preference (E1): Priority Worker and Persons of Extraordinary Ability
There are three sub-groups within this category:
1. Persons with extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in their fields of expertise. Such applicants do not have to have specific job offers, so long as they are entering the U.S. to continue work in the fields in which they have extraordinary ability. Such applicants can file their own Immigrant Petitions for Alien Worker, Form I-140, with the USCIS.
2. Outstanding professors and researchers with at least three years of experience in teaching or research, who are recognized internationally. Applicants in this category must be coming to the U.S. to pursue tenure, tenure track teaching, or a comparable research position at a university or other institution of higher education. The prospective employer must provide a job offer and file an Immigrant Petition for Alien Worker, Form I-140, with the USCIS.
3. Multinational managers or executives who have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant’s employment outside of the U.S. must have been in a managerial or executive capacity, and the applicant must be coming to work in a managerial or executive capacity. The prospective employer must provide a job offer and file an Immigrant Petition for Alien Worker, Form I-140, with the USCIS.
Employment Second Preference (E2): Professionals Holding Advanced Degrees and Persons of Exceptional Ability
A Second Preference applicant must generally have a labor certification approved by the Department of Labor. A job offer is required and the U.S. employer must file a Form I-140 on behalf of the applicant.
Applicants may apply for an exemption, known as a National Interest Waiver, from the job offer and labor certification if the exemption would be in the national interest. In this case, the applicant may self-petition by filing the Immigrant Petition for Alien Worker, Form I-140, along with evidence of the national interest. Professionals Holding Advanced Degrees and Persons of Exceptional Ability receive 28.6 percent of the yearly worldwide limit of employment-based immigrant visas, plus any unused visas from the Employment First Preference category.
There are two subgroups within this category:
1. Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession.
2. Persons with exceptional ability in the sciences, arts, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Employment Third Preference (E3): Skilled Workers, Professionals, and Unskilled Workers (Other Workers)
A Third Preference applicant must have an approved Form I-140 filed by the prospective employer. All such workers generally require labor certification approved by the Department of Labor. Skilled Workers, Professionals, and Unskilled Workers (Other Workers) receive 28.6 percent of the yearly worldwide limit of employment-based immigrant visas, plus any unused visas from the Employment First Preference and Second Preference categories.
There are three subgroups within this category:
1. Skilled workers are persons whose jobs require a minimum of 2 years training or work experience that are not temporary or seasonal.
2. Professionals are members of the professions whose jobs require at least a baccalaureate degree from a U.S. university or college or its foreign equivalent degree.
3. Unskilled workers (Other workers) are persons capable of filling positions that require less than two years training or experience that are not temporary or seasonal.
Employment Fourth Preference (E4): Certain Special Immigrants
A Fourth Preference applicant must be the beneficiary of an approved Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360, with the exception of Certain Employees or Former Employees of the U.S. Government Abroad. Labor certification is not required for any of the Certain Special Immigrants subgroups. Special Immigrants receive 7.1 percent of the yearly worldwide limit of employment-based immigrant visas.
Employment Fifth Preference (E5): Immigrant Investors
Immigrant Investor visa categories are for capital investment by foreign investors in new commercial enterprises in the United States that provide job creation. To be considered for an E5 immigrant investor visa, an applicant must file Form I-526, Immigrant Petition by Alien Entrepreneur, with U.S. Citizenship and Immigration Services (USCIS).
To qualify as an immigrant investor for petitions filed on or after November 21, 2019, a foreign national must invest, without borrowing, the following minimum qualifying capital dollar amounts in a qualifying commercial enterprise:
• $1,800,000 (U.S.); or
• $900,000 (U.S.) in a high-unemployment or rural area, considered a targeted employment area.
A qualifying investment must, within two years, create full-time jobs for at least 10 U.S. citizens, lawful permanent residents, or other immigrants authorized to work in the United States, not including the investor and the investor’s spouse, sons, or daughters.
Immigrant investor visa categories are:
• Employment creation outside a targeted area—C5
• Employment creation in a targeted rural/high unemployment area—T5
• Investor Pilot Program not in a targeted area—R5
• Investor Pilot Program in a targeted area—I5
General Filing Tips
To ensure that USCIS does not reject your Form I-140, make sure to submit your form with correct information and well-organized supporting documentation. Follow the general filing tips on the Tips for Filing Forms with USCIS page at https://www.uscis.gov/forms/filing-guidance/form-filing-tips to ensure that USCIS will accept your Form I-140 for processing.
Additionally, here are some Form I-140 filing tips to follow:
General
• Use the current version of the form, which you can find at www.uscis.gov/i-140.
• File your Form I-140 at the correct address. Go to the Direct Filing Addresses for Form I-140, Immigrant Petition for Alien Worker page on the USCIS website located at https://www.uscis.gov/i-140-addresses to determine where to file your Form I-140. USCIS sometimes transfers workload between service centers, so be sure you file your form at the current filing address.
• Make sure the petitioner signs the Form I-140.
• If you file a Form I-140 with other related applications for the beneficiary, write the beneficiary’s name on the payment document (for example, in the memo line on a check).
• Submit one check per form. If you use one check to pay for more than one petition or application and USCIS determines that you did not properly file one of the forms, they will reject all of the forms.
• If applicable, submit Form G-28, Notice of Entry of Appearance as Attorney or Representative with original signatures.
Completing the Form
• Make sure that you provide the petitioner’s (not the attorney’s) contact information in Part I of the Form I-140.
• Select only one visa preference category in Part 2 of the Form I-140. USCIS will reject your form if you leave Part 2 blank or if you select more than one category.
• If the beneficiary will be placed at a client site, identify the address of the client location in Part 6 of Form I-140.
• For E11 and NIW filings, include information in Part 6, Basic Information About the Proposed Employment. At a minimum, it is helpful to complete: 1. Job title; 2. SOC code; and 3. Nontechnical description of the job. This information is needed to verify the beneficiary’s/self-petitioner’s proposed endeavor or how he or she intends to continue to work in the area of expertise in the U.S.
Filing a Form I-140 That Requires a DOL-approved Labor Certification
If you file a Form I-140 and request a visa category that requires a Department of Labor (DOL)-approved labor certification, we will review your petition to verify that it contains a valid labor certification. These visa categories are:
• E21, Member of the professions holding an advanced degree or an alien of exceptional ability (Form I-140, Part 2. option d.)
• E32, Professional (Form I-140, Part 2. option e.)
• E31, Skilled Worker (Form I-140, Part 2. option f.)
• EW3, Other Worker (Form I-140, Part 2. option g.)
You must submit the labor certification with the Form I-140 during the 180-day validity period annotated at the bottom of every page of the labor certification. We will reject your Form I-140 if you do not include a valid labor certification, unless you clearly state that you are filing under one of the following two exceptions:
• If you need a duplicate labor certification, check the box marked “Yes—Attach an explanation” at Part 4, Item 8 of the form. Write that request in large, bold font on a brightly colored piece of paper and place the paper directly under the Form I-140.
• If you are filing a Form I-140 as an amended petition and the original labor certification was already submitted with another Form I-140, check the box marked “Yes—Attach an explanation” at Part 4, Item 7 of the form. Place a brightly colored piece of paper directly under the Form I-140 and write on it in large, bold font that this Form I-140 is an amended petition and that the labor certification has already been submitted. Also provide the receipt number of the previously-filed Form I-140, if available.
In Texas, as in all U.S. states, the regulation of employment-based immigrant visas is governed by federal law, not state statutes. The U.S. Citizenship and Immigration Services (USCIS) administers the program, which allocates approximately 140,000 visas each fiscal year to qualified applicants under five preference categories (EB-1 through EB-5). Employers typically file Form I-140, Immigrant Petition for Alien Worker, on behalf of the applicant, except in certain cases where individuals with extraordinary abilities, or those seeking a National Interest Waiver, can self-petition. The EB-4 category uses Form I-360, and the EB-5 category requires Form I-526. Each category has specific requirements, such as labor certification, job offers, investment amounts, and job creation. Filing tips include using the current form version, filing at the correct address, ensuring proper signatures, and providing accurate and complete information. Labor certification must be valid and submitted with the petition unless specific exceptions apply. It's important for applicants and employers to follow USCIS guidelines closely to avoid rejection of their petitions.
