SKILLED WORKERS, PROFESSIONALS AND OTHER WORKERS
The third preference employment category includes: (1) skilled workers; (2) professionals; and (3) other workers. Like the first and second preference categories, the third preference category is allocated approximately 40,000 immigrant visas per year, however “Other Workers” within the third preference are limited to only 10,000 visas annually. This limitation has already resulted in backlogs of over seven years for “other workers” and the backlog is anticipated to increase even more dramatically. Thus, it is extremely important to qualify the alien as either a “skilled worker” or “professional” rather than as an “other worker.”
Immigrant visas under the third preference employment category are based on a job offer for permanent employment. 8 USC §1135(b)(3)(I)(iii). The determination as to whether a job position is permanent focuses on the employer’s need rather than the nature of the duties to be performed. As such, a job position previously filed under a Nonimmigrant temporary employment visa may become permanent in nature if the employer is able to document that it has been unable to hire or train a lawful permanent resident or United States worker for the position.
Skilled workers are defined as qualified aliens who are capable of performing skilled labor requiring a minimum of two years of training or experience in a position not temporary or seasonal in nature. Relevant post secondary education may be considered as training. 8 CFR §204.5(1)(2).
A determination as to whether the skilled labor requires two or more years of training or experience often depends on the qualifications for a particular occupation as set forth in certain Department of Labor publications such as the Dictionary of Occupational Titles or Occupational Outlook Handbook. The Department of Labor has provided job descriptions of selected occupations and corresponding minimum qualifications in these publications.
An alien attempting to qualify for third preference classification as a professional must possess, at a minimum, a baccalaureate degree or foreign equivalent, and the employer must demonstrate that such a degree is the normal requirement for entry into the profession.
Not every alien who has graduated from an accredited college or university with a baccalaureate equivalent is eligible for classification as a member of the professions, Matter of Medina, 13 I&N Dec. 581 (Reg. Comm. 1970), because the CIS adopts the position that certain occupations require a degree above the baccalaureate level to qualify as a profession. Matter of Liagan, 13 I&N Dec. 106 (Regional Comm. 1968).
Conversely, the occupation will not be deemed a profession if the attainment of a degree is not a realistic prerequisite for performing the job responsibilities. As such, the mere fact that the employer desires college graduates for the position does not render the occupation a profession if the job does not realistically require a degree.
The new Act specifically eliminated provisions for a baccalaureate equivalency based upon a combination of education and experience.
Other workers are simply those aliens in positions which require less than two years of higher education, training, or experience to perform job responsibilities not of a seasonal or temporary nature. Again, the current backlog for the other workers category is five and one half years, and the State Department predicts an advance of no more than one week per month. As such, the possibility for immigration in this category is dismal.
A U.S. employer desiring to obtain an immigrant visa for an alien employee under third preference classification as skilled workers, professionals, and other workers or members of the professions holding an advanced degree or as an alien of exceptional ability must submit an approved labor certification from the U.S. Department of Labor, an Application for Schedule A designation, or documentation establishing that the alien qualifies for one of the shortage occupations in the Department of Labor’s Labor Market Information Pilot Program. 8 CFR §204.5(k)(4)(I).
The fourth employment-based category is reserved for “special immigrant” status. The Act provides approximately 10,000 visas annually for this category. The category is for the benefit of three sub-groups: (1) ministers of religion; (2) professionals working in religious vocations or occupations; (3) and workers in religious vocations who work for United States non-profit religious organizations or non-profit religious organizations affiliated with qualified religious denominations. The sub-groups of religious professionals and other religious workers are limited to 5,000 of the allocated visas and the visa availability for these two sub-groups will “sunset” on September 30, 2000.
The alien must have been a member of a religious denomination which has had a bona fide non-profit religious organization in the United States for at least two years immediately preceding the application. The alien must be entering the United States to work as a minister of religion for an organization in a religious capacity, or for the organization or a related non-profit entity in another professional capacity. The alien must have been carrying on such work as a minister, professional or other worker for at least two years preceding the application.
The alien must have at least a baccalaureate degree to qualify as a religious professional. A combination of experience and education may not be substituted for a baccalaureate degree.
EMPLOYMENT CREATION VISAS
The Act also provides for an investor/employment category of immigrant visas. The Act provides approximately 10,000 visas annually for aliens who invest $1 million ($500,000 for target areas) in a new commercial enterprise which employs at least 10 full-time U.S. workers and provides the alien with a policy-making role.
The Act provides that investor/employment creation visas will be issued conditionally for a two-year period in an effort to deter fraud. After two years, the U.S. Attorney General must determine if the applicant has actually established a legitimate commercial enterprise. The Act also provides that establishing a commercial enterprise for the purpose of evading immigration laws is a felony punishable by up to five years imprisonment.
An alien desiring to qualify for an investor/employment creation status is afforded four methods to establish a new commercial enterprise. The alien may: (1) create an original business; (2) purchase and restructure an existing business; (3) expand and substantially increase the number of employees or net worth of a business; or (4) invest in a troubled business and increase the net worth or number of employees by at least 40 percent.
The alien must have invested after November 29, 1990, and any for-profit entity created to continually conduct lawful business may serve as the “new commercial enterprise.” However, the term “new commercial enterprise” does not include noncommercial activity.
+Specific rules regulate investments in “troubled” businesses. The rules were adopted to encourage investments in United States companies experiencing financial problems. A “troubled” business is a for-profit entity which has been in existence for at least two years and has incurred a net loss for accounting purposes throughout the 12 or 24 month period prior to the priority date and the loss for such period must be at least equal to 20 percent of the entity’s net worth prior to the loss. 8 CFR §204.6 (e). The alien must also show at least 10 employees existed at the time of the investment in the troubled business and that existing employees will be maintained at no less than the pre-investment level for at least two years.
The term “investment” means to contribute capital. Capital is defined as cash (and cash equivalents), equipment, inventory, other tangible property, or indebtedness secured by assets owned by the alien and incurred for the purposes of the investment.
The Act requires that the investments “benefit the U.S. economy.” The Act provides no guidance on which investments are deemed to be for the benefit of the economy.
The investment must also create full-time employment for at least 10 U.S. citizens, lawful permanent residents or other immigrants lawfully authorized to be employed in the United States, not including the investor, his spouse, and children. “Other immigrants” includes conditional residents, temporary residents, asylees, refugees, and aliens granted suspension of deportation. An employee includes any individual, other than independent contractors, who provides services or labor for the new commercial enterprise and receives wages or other remuneration directly from the new commercial enterprise.
The Act set aside 3,000 of the 10,000 visas for aliens who invest $500,000 in target areas. 8 USC §1153(b)(5)(B). A “target area” is defined as a rural area which has experienced a high unemployment rate of at least 150 percent of the national average. 8 CFR §204.6(j)(6)(I).
The Act establishes provisions for the termination of an investor alien’s immigrant status during the two-year conditional period. The alien’s immigrant status will be terminated if the CIS determines that the new commercial enterprise was created to evade the immigration laws of the United States; the investor did not establish a new commercial enterprise; the alien failed to invest (or was not in the process of investing) the requisite capital; the investor failed to sustain the investments during the two-year conditional period; or if the investor was otherwise not conforming to the requirements of the employment creation provisions of the Act.