The worldwide level or quota set for employment based immigrants under section 201 (d) of the Immigration and Nationality Act, (INA), is 140,000 per fiscal year plus the difference between the maximum number of visas issued and those actually issued in the previous year. The entry of employment-based immigrants under the Act is set out under section 203(b).

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The worldwide level or quota set for employment based immigrants under section 201 (d) of the Immigration and Nationality Act, (INA), is 140,000 per fiscal year plus the difference between the maximum number of visas issued and those actually issued in the previous year. The entry of employment-based immigrants under the Act is set out under section 203(b). A number of migrant workers are given priority as “priority workers” to enter as part of the yearly quota. These are: under section 203(1)A: migrants with extraordinary ability in the sciences, arts, education, business or athletics. Such ability has to have been demonstrated through sustained national or international acclaim supported by extensive documentation. Migrant workers with such extraordinary ability must seek to enter to continue their work in the area of their ability to the prospective substantial benefit of the United States.

Outstanding professors and researchers are given priority under section 203 (1)B of the INA if they are recognised internationally as outstanding in a specific academic area and have at least three years of teaching and research in that area. For entry they must also have been offered a tenured position for teaching in the academic area at a university or institution of higher education; have a comparable position at a university or institute of higher education or a comparable position in that area at a private company to conduct research. Under section 203 (1)C certain managers and executives will be given priority if they have worked for a firm or corporation for at least a year, in the three years preceding their application to enter the US, and are seeking to continue their employment with that firm or corporation or an affiliate or subsidiary of that organisation in the United States.

All the above categories of migrant workers are for those who intend to permanently reside in the US and have been given indefinite job offers. Temporary migrant workers may enter the US and are classed as non-immigrants under section 101(15)(B) of the INA. Employers must file the application on behalf of the applicant, which may be in a number of fields, including: nurses and temporary unskilled labour such as seasonal workers. Limits on the entry of such workers apply which may be allowed for up to three years depending on the type of work for which entry is sought. (1) Migrant workers must also seek a visa before entry. The treatment of permanent and temporary workers on pay and work conditions is generally the same as US citizens under US labour law. Special protection is provided to seasonal agricultural workers under the Migrant and Seasonal Agricultural Workers Act, which was passed in 1983, concerning pay and work conditions. Written statements of wages must be provided to workers under the Act and any housing provided must meet safety and health standards. Contractors must obtain a certificate of registration from the US Department of Labour, which sets out the above conditions prior to employing migrant workers.

Regular migrant workers are entitled to the protection under the National Labour Relations Act of 1935. The Act provides rights to employers, under section 7, to self-organize, form, join or assist trade unions and to collective bargaining. The Act also entitles employees under section 8 to protection from unfair labour practices such as: discrimination in hiring or setting terms or conditions of contracts; being discharged or discriminated against because they have filed charges under the Act or refusals by the employer to bargain collectively with them. Section 3 establishes the National Labour Relations Board (NLRB), which investigates and remedies unfair practices by employers.(2)

(1) See detailed information on Temporary Workers.

(2) See The National Labour Relations Board website.

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.

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