The INS proposed significant changes for employment based permanent residency, including aliens of extraordinary or exceptional ability, national interest waivers, skilled workers, and religious workers.
Aliens of extraordinary ability may apply for permanent residency under the first employment based preference category, for which visas are readily available and no job offer or labor certification is required. Under the proposed regulation, these individuals must provide evidence to fulfill at least three out of ten criteria (although three may not be enough). These criteria include nationally or internationally recognized awards; membership in associations which require outstanding achievements; publications; articles; reviewing or judging the work of peers; major and original scholarly, scientific or artistic contributions; public display of artistic contributions; a lead, starring or critical role for organizations with distinguished reputations; commercial successes in the performing arts; and commanding a high salary or remuneration. The proposed regulation also requires that the individuals primary source of income is from their field of extraordinary ability.
Aliens of exceptional ability may apply for permanent residency under the second employment based preference category, for which visas are readily available. However, a job offer and a labor certification must be obtained in order for the individual to qualify for permanent residency. Under the proposed regulation, these individuals must provide evidence to fulfill at least three out of seven criteria (although three may not be enough). These criteria include degrees relating to the area of exceptional ability; at least ten years of work experience in the field; professional licenses; commanding a high salary or remuneration; membership in professional associations; and recognition for achievements and significant contributions to the industry or field.
Current INS regulations further provide that aliens of exceptional ability or holding advanced degrees whose permanent residency is in the “national interest” may apply for a waiver of job offer and labor certification requirements of the second employment based preference category. The proposed regulation would expand this category by allowing “professionals,” such as engineers and public accountants, to apply for national interest waivers. However, the proposed regulation would define national interest in a more restrictive fashion by requiring that the petitioner establish four distinct elements. First, the individual would need to have at least two years of work experience in the area intended to benefit the U.S. Second, the proposed regulations would prohibit a national interest waiver based solely upon a local labor shortage, since such a shortage affects only a region and not the entire country. Third, the individual needs be involved in an activity that will convey a substantial future benefit to the U.S. Finally, the individual’s involvement in such activity must be substantial. See Siskind’s Immigration Bulletin, November, 1994, for an article on national interest waivers.
Aliens who are “skilled workers” may apply for permanent residency under the third employment based preference category, and visas are readily available for most regions of the world. Similar to the second employment based preference category, a job offer and a labor certification must be obtained in order for the individual to qualify for permanent residency. A skilled worker is an individual who has at least two years of training or experience. The proposed regulation states that the job offered must require two years of training or experience. Individuals who are skilled workers but are offered positions that do not require two years of training or experience will be subjected to a substantial backlog for permanent residency as “unskilled workers.”
Religious workers are members of organizations closely affiliated with religious denominations, and may apply for permanent residency as “special immigrants” until October, 1997. A religious worker may be a minister, priest, monk, nun, or other religious worker, and includes professional religious workers with baccalaureate degrees of equivalent. The INS defines a religious denomination as a group or a community of believers with the same ecclesiastical government, worship, statement of faith, creed, doctrine or other comparable factors. Under the proposed regulation, the INS would require two-years of full-time work experience as a member of the religious denomination in order to qualify for this category.
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