\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 22 Employment-based Petitions, Entrepreneurs and Special Immigrants. [Updates all of Chapter 22 as of 09-12-2006] \ 22.1 Prior Law and Historical Background.
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22.1 Prior Law and Historical Background.
The requirement of filing a petition to bring workers into the U.S. evolved out of a legislative desire to exercise control over immigration that might negatively affect the American labor market. Restriction of immigration to protect the American labor market is a relatively recent concern of the legislature. In fact, initial federal controls over immigration formulated in 1875 sought to do no more than bar the admission of certain types of "undesirable" persons. In general, no numerical restraints of a
ny kind were enacted until the quota acts of 1921 and 1924. Even with major revisions of the immigration laws in 1924 and as recently as 1952, with certain exceptions, there was still no firmly established policy of "protecting the job market."
The Act of June 27, 1952
Under the Act of 1952, aliens subject to the labor exclusion of 212(a)(14) of the Act were admissible
the Secretary of Labor made a prescribed disqualifying certification. At that time, the control was meant as an emergency measure that could be invoked in a time of economic stress or crisis.
In the original 1952 Act,
stated: "to qualified quota immigrants whose services are determined by the Attorney General to be needed urgently in the United States because of the high education, technical training, specialized experience, or exceptional ability of such immigrants and to be substantially beneficial prospectively to the national economy, cultural interests, or welfare of the United States."
Ch. 477, Title II, Ch. 1, section 203, 66 Stat. 178 (June 27, 1952)(as amended)
The 1965 Amendments
By legislative amendment in 1965, the Act of 1952 was dramatically altered, abandoning the "national origins" concept and instituting separate numerical limits for Eastern and Western Hemisphere immigrants, dividing immigrants into:
special immigrants, and
other immigrants - including all the "preference" classifications.
Immediate relative and certain special immigrants were not restricted by numerical limitations, but all preference immigrants were numerically limited. The 1965 amendments introduced a new control barring the entry of certain classes of immigrants unless they first obtain a certification from the Department of Labor (DOL) that their coming to the United States would not adversely affect American labor.
1965--Subsec. (a). Pub. L. 89-236 substituted provisions setting up preference priorities and percentage allocations of the total numerical limitation for the admission of qualified immigrants, consisting of unmarried sons or daughters of U.S. citizens (20 percent); husbands, wives, and unmarried sons or daughters of alien residents (20 percent plus any unused portion of class 1); members of professions, scientists, and artists (10 percent), married sons or daughters of U.S. citizens (10 percent plus any un
used portions of classes 1-3); brothers or sisters of U.S. citizens (24 percent plus any unused portions of classes 1 through 4); skilled or unskilled persons capable of filling labor shortages in the United States (10 percent); refugees (6 percent); otherwise qualified immigrants (portion not used by classes 1 through 7); and allowing a spouse or child to be given the same status and order of consideration as the spouse or parent, for provisions spelling out the preferences under the quotas based on the pr
evious national origins quota systems. Subsec. (b). Pub. L. 89-236 authorized issuance of quota immigrant visas under the previous national origins quota system in the order of filing in the first calendar month after receipt of notice of approval for which a quota number was available.
Subsec. (a)(27). Pub. L. 94-571, enacted on 10/10/1976, struck out the subparagraph (A) provision defining the term ”special immigrant'' to include an immigrant born in any independent foreign country of the Western Hemisphere or in the Canal Zone and the spouse and children of any such immigrant, if accompanying, or following to join him and restricting issuance of an immigrant visa until consular officer was in receipt of a determination made by the Secretary of Labor pursuant to former provisions of sect
ion 1182(a)(14) of this title; and redesignated as subparagraphs (A) to (D) and former subparagraphs (B) to (E).
Prior to this change all natives of the Western Hemisphere had to be special immigrants or immediate relatives. They were not eligible for preference immigrant status until this change. The change was effective January 1, 1977 (the first month more than 60 days from date of enactment-10/20/1976). [
: under the Act and Regulations in effect from 1965 until 1977, an exemption from the labor certification requirement for Western Hemisphere would be obtained by establishing that one had a child who was a U.S. citizen. One established a priority date for IV issuance by filing a form that verified the existence of the U.S. citizen child (Note: adjustment of status was prohibited for Western Hemisphere natives even as immediate relatives).]
IMMACT 90 and Subsequent Legislation
The Immigration Act of 1990 (IMMACT 90) divided the preference categories into 2 groups (family-based and employment-based) and expanded the number of employment-based categories from two (the former third and sixth preferences) to three classifications. Those three classifications were further divided into subcategories dealing with specific groups of immigrant workers. IMMACT 90 also placed numerical limits on several special immigrant classifications and added new provisions for entrepreneurs. The cla
ssifications under IMMACT 90 include:
Aliens with extraordinary ability
Outstanding professors and researchers
Certain multinational executives and managers
Members of the professions holding advanced degrees
Aliens of exceptional ability
Ministers of religion & other religious worker cases as defined in section
of the Act
NATO personnel defined in section
of the Act; and
International broadcast personnel defined in section
of the Act.
Although not included in
of the Act at the time of the enactment of IMMACT 90, the "L" and "M" special immigrant classifications are subject to the numerical limitation of
of the Act.
The Special Immigrant classifications defined in sections
(returning lawful permanent residents) and
(certain former citizens of the U.S.) of the Act are not numerically restricted and are not included in the fourth preference categories. Because these classifications do not require a petition, they are not discussed in this field manual chapter, but are instead included in the discussions in
of this field manual.
Fifth Preference or "employment creation immigrants" under
of the Act (discussed in
of this field manual)
Entrepreneurs or investors