Priority Worker status under the Immigration Act of 1990 enables qualified applicants to obtain Lawful Permanent Resident status in the U.S. without the need for an individual Labor Certification, thereby avoiding the lengthy and costly procedure which must be followed by most employment-based immigrants. This status is available to multinational managers or executives who meet the following requirements:
- He or she must have been employed abroad by the petitioner (or its parent, subsidiary or affiliate firm) for at least one year during the preceding three years (or, for one year during the three years which preceded entry to the U.S. in temporary worker status);
- An alien currently in the U.S. (usually in “L” or “E” status) satisfies the one year employment abroad requirement if he or she met this requirement at the time of initial entry to the U.S.
- The employment abroad must have been “managerial” or “executive” in nature;
- The employment offered in the U.S. must also be “managerial” or “executive” in nature.
Priority Worker status is especially attractive for several reasons. Qualified applicants are given first consideration for the issuance of “visa numbers” under the quota system. This factor, coupled with a large increase in the employment-based immigration quota, should mean the absence of any significant waiting list for the foreseeable future. Unlike the corresponding classification under prior law, it is irrelevant whether the applicant possesses a university degree. The concept of “managerial capacity” has been broadened to include those who manage a “function” rather than focusing on the number of employees managed. Finally, the one year prior employment need not take place during the immediately prior year, but at any time during the preceding three years. This will permit a valued employee who may have interrupted employment with the petitioning firm for some time to apply.
Upon approval of a Priority Worker Immigrant Visa Petition (Form I-140), the applicant and any accompanying family members (spouse and children under the age of 21) can:
- Apply for an immigrant visa at the American Consulate in their home country, or
- If in the U.S., apply for Adjustment of Status through an INS Service Center. Upon acceptance of the Application, the applicant and spouse can be granted “employment authorization”, thereby allowing the dependant spouse to work in the U.S. while the Application is pending, in any desired occupation. Final approval of an Adjustment of Status Application is now taking twelve months, or longer.
The terms “managerial capacity” and “executive capacity”, are defined by the Immigration and Naturalization Service as follows:
“Managerial Capacity” means an assignment within an organization in which the employee primarily:
- Manages the organization, or a department, subdivision, function, or component of the organization.
- Supervises and controls the work of the other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization.
- Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization ) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed.
- Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.
“Executive Capacity” means an assignment within an organization in which the employee primarily:
- Directs the management of the organization or a major component or function of the organization.
- Establishes the goals and policies of the organization, component, or function.
- Exercises wide latitude in discretionary decision-making, and receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.