Prior to the Immigration Act of 1990, the law allowed for the admission
of 54,000 immigrants annually based upon offers of employment as professionals
(3rd preference category) or as skilled or unskilled workers (6th preference
In general, before a preference petition on behalf of a prospective
immigrant could be submitted to the U.S. Immigration and Naturalization
Service (INS), an employer had to obtain an alien labor certification
issued by the U.S. Department of Labor. This labor certification represented
a determination by the Secretary of Labor that no qualified U.S. workers
were ready, willing and able to fill the job, and that the employment
of an immigrant would not adversely affect the wages and working conditions
of U.S. workers.
The 1990 law replaced the former statutory scheme with a number of
new categories. The 140,000 visas allocated to employment- sponsored
immigration are distributed as follows:
(1) Priority workers (28.6% of the worldwide level
of visas, or approximately 40,000 visas PLUS unused special immigrant
and investor visas, if any)
Priority workers include (A) persons of extraordinary ability, (B)
outstanding professors and researchers, and (C) certain executives and
managers of multinational corporations.
A person's extraordinary ability in the arts, sciences, business, education,
or athletics must be demonstrated by sustained national or international
acclaim, and his achievements must have been recognized in his field
through extensive documentation. He must be entering the U.S. to continue
work in his area of extraordinary ability, and his entry must substantially
benefit prospectively the U.S.
To qualify as an outstanding professor or researcher, a person must
(1) be recognized internationally as outstanding in a specific academic
area; (2) have at least three years of teaching or research in the academic
area; and (3) seek to enter the U.S. for (a) a tenured or tenure-track
position within a university or other institute of higher education
to teach in the academic area; (b) a comparable position with a university
or other institute of higher education to conduct research in the area;
or (c) a comparable position to conduct research in an area with a department,
division, or institute or a private employer, if the department, division,
or institute employs at least three persons full-time in research activities
and has achieved documented accomplishments in an academic field.
A multinational executive or manager must have been employed abroad
as such during at least one of the three years preceding his application
for priority worker classification and admission into the U.S. as a
priority worker. He must be entering the U.S. to be employed as an executive
or manager for the same firm, corporation or legal entity (or to a subsidiary
or affiliate thereof) that employed him abroad.
(2) Professionals with advanced degrees and persons of exceptional
ability (28.6% of the worldwide level of visas, or approximately
40,000 visas PLUS unused visas from priority worker category, if any)
These visas are reserved for qualified immigrants who are (1) members
of the professions holding advanced degrees or their equivalent, or
(2) those who are of exceptional ability in the sciences, arts, or business.
It is required that such immigrants will substantially benefit prospectively
the national economy, cultural or educational interests of the U.S.
and that their services are sought by an employer in the U.S.
In determining whether a person is of exceptional ability, the possession
of a degree or license does not, by itself, constitute sufficient evidence
of such ability.
Unlike a priority worker, a person may immigrate to the U.S. under
this category only after his employer has obtained a labor certification
for his job. However, where it is deemed to be in the national interest,
the Immigration Service may waive the requirements of a job offer and
A person holding a bachelor's degree and five years of professional
experience will be considered to possess the equivalent of an advanced
degree for purposes of this section of law.
(3) Skilled workers, professionals and other workers
(28.6% of the worldwide level of visas, or approximately 40,000 visas
PLUS unused visas from the two preceding categories, if any)
A qualified skilled worker is a person capable of performing an occupation
which requires at least two years of training or experience, not of
a temporary or seasonal nature, for which qualified workers are not
available in the U.S.
A person is a qualified professional under this category if he holds
a baccalaureate degree and is a member of the professions.
Other workers are those who are capable of performing unskilled labor,
not of a temporary or seasonal nature, for which qualified workers are
not available in the U.S.
Skilled workers, professionals and other workers may immigrate to the
U.S. only after their employers obtain labor certifications for their
jobs. Unskilled workers are limited to no more than 10,000 visas per
year under this category. This limitation has resulted in dramatically
increased waiting times for housekeepers and other unskilled workers.
(4) Special immigrants (7.1% of the worldwide level
of visas, or approximately 10,000 visas)
A variety of immigrants in this category include religious ministers,
long time employees of the U.S. government employed abroad, certain
investors and physicians who have resided in the U.S. for a number of
years and many other categories of persons.
Prior law did not provide for numerical restrictions upon special immigrants.
The act imposed a ceiling of 10,000 visas annually for special immigrants.
Two types of special immigrants (immigrants, lawfully admitted for permanent
residence, who are returning from a temporary visit abroad, and immigrants
who are former U.S. citizens) are exempt from this limitation.
The act adds several new categories of special immigrants: (1) religious
workers for bona fide, tax-exempt, non-profit religious organizations
in the U.S. (5,000 annual numerical limitation), (2) certain employees
at the U.S. Consulate in Hong Kong, and (3) certain aliens who have
been declared dependents of juvenile courts in the U.S.
(5) Investors - See Green Cards Through Investment
The act requires that labor certifications be obtained for persons immigrating
under the 2nd (professionals with advanced degrees and persons with exceptional
ability) and 3rd (skilled workers, professionals and other workers) employment-based
categories. However, the act provides that no labor certification will
be valid unless, at the time of filing the application, the employer has
provided notice of the filing (1) to the bargaining representative of
the employees in the occupational classification and area for which aliens
are sought, or (2) if there is no such bargaining representative, to employees
employed at the facility through posting in conspicuous locations.
Any person is permitted to submit to the Department of Labor documentary
evidence bearing on or challenging the statements made in an application
for certification on file with the Secretary of Labor. This evidence
may include such items as information on available workers, information
on wages and working conditions, and information on the employer's failure
to meet terms and conditions with respect to the employment of alien
workers and co-workers.