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Employers Be Aware: Surplus of Employment-Based Visas Available for Fiscal Year 2022

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Approximately 140,000 employment-based immigrant visas are made available every fiscal year under United States immigration laws to qualified applicants with a job offer from a U.S. employer. However, due to the restrictions and staffing shortages during the recent COVID-19 pandemic, many family and employment-based visas were not used during fiscal year 2021. As a result, United States Immigration and Citizenship Services announced that there is a surplus of employment-based visas for first and second employment-based preference categories for fiscal year 2022. Based on this surplus, USCIS urges employers and eligible immigrant workers to seek an employment-based visa in the first or second preference category, which has the potential to significantly impact an employer’s labor force positively by expediting the processing of these employment visas. 

Employment-based immigrant visas are divided into five preference categories. The first, known as an EB-1 visa, is reserved for priority workers such as:  aliens with extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors or researchers; and multinational executives. The second preference category (EB-2) is reserved for persons who are members of professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business. The third category (EB-3) is for skilled workers who have at least two years of experience, training or education and professionals with bachelor’s degrees that do not qualify for the second category. The fourth category (EB-4) is for special immigrant applicants, which includes religious workers, employees of U.S. foreign service posts and retired employees of international organizations, among others. The fifth preference category (EB-5) is for capital investors in new U.S. commercial enterprises providing domestic job creation. 

These five visa categories and their limited availability under U.S. immigration law are crucial for an employer seeking immigrant employees, as immigrant employees will ordinarily not be permitted to enter the country until a visa is available to them. Historically, employment-based visas in these preference categories are exhausted every fiscal year, leaving many employers and potential immigrant employees waiting years for action on their application. 

Employer seeking to employ an immigrant worker must fulfill several steps. Once an employer identifies and makes a job offer to a potential immigrant employee, the employer must obtain a labor certification approval from the U.S. Department of Labor, unless the potential immigrant employee falls within the first preference category. As part of the labor certification approval process, the DOL verifies that there are insufficient available, qualified and willing U.S. workers to fill the position being offered at the prevailing wage and that hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. 

Following the approval of the labor certification, the employer must then file an Immigrant Petition for Alien Worker, Form I-140, with USCIS. Only those immigrant workers in the first preference category who possess extraordinary abilities in the sciences, arts, education, business or athletics can file the Immigrant Petition for Alien Worker on their own behalf, while all others in that category and those in the second preference category must have their prospective U.S. employer file the Petition on their behalf. After USCIS approves the Petition, it is sent to the National Visa Center for further processing and scheduling of the immigrant visa interview. Once the immigrant visa is approved, the immigrant worker can enter the U.S. 

USCIS has also urged those immigrant workers currently in the U.S. in EB-3 category with a pending application for permanent residence, also known as adjustment of status, to consider a transfer to the first or second preference categories, if eligible, due to the current surplus of visas in the EB-1 and EB-2 categories. A transfer to either of these categories would mean that the immigrant worker would be immediately eligible for permanent residence, as there is a visa available through which to obtain permanent residence. 

Both employers and employees who are navigating the employment-based visa application process through the USCIS and Department of Labor could benefit from a skilled and experienced immigration attorney.

Ednna Meraz Ibarra is an immigration law attorney with Reid & Hellyer, APC, in its Murrieta office, where she practices business law and immigration law. She may be reached through our website at or at (951)695-8700.