Overview
The Employment Based Immigration process is governed by a system of visas,
each of which establishes specific terms and conditions for entering and
remaining in the United States. These include a variety of both "Immigrant"
(permanent) U.S. visas and "Non-Immigrant" (temporary) U.S. visas. An
Immigrant visa granting Legal Permanent Residency is also commonly referred
to as a "Green Card."
US Citizenship and Immigration Service (USCIS) issues Immigrant and
Non-Immigrant visas subject to a quota system. For Immigrant visas, a system
of preference categories is used in addition to the quota system. For
example, approximately 65,000 H1-B visas are issued each year.
Getting a Non-Immigrant Temporary Visa
There are many temporary work related visas designed to allow professionals
to enter the U.S. for employment purposes. Individuals can apply for
different visas depending on work related abilities, employment status,
and/or investment criteria. In many cases, workers come to the U.S. on a
temporary visa and then subsequently apply for an Immigrant visa to gain
Legal Permanent Residency.
H1-B Visa (Professional In a Specialty Occupation)
The H1-B visa is issued to those who wish to temporarily work in the United
States as a professional in a specialty occupation. Currently, the number of
H1-B visas granted each year is capped at 65,000.
H1-B visa requirements:
- you must be coming to the U.S. to perform services in a specialty
occupation with a college degree or its equivalent in work experience,
or be a distinguished fashion model
|
|
|
|
- you must have a job offer from a qualified U.S. employer for work
to be performed in the U.S., and you must be paid according to market
value
|
|
- you must have the requisite background to qualify for the job you
are offered
|
|
- your employer must have filed an attestation with the Dept. of
Labor
|
|
|
- your job must require a bachelor’s degree or higher, and this is
standard in the industry or among similar positions in similar
organizations.
|
|
|
|
|
|
|
Some examples of specialty occupations include accountants, upper-level
business managers, physical therapists, engineers, and scientists.
H1-B Application Process
The application process for the H1-B visa includes the employer filing a
Labor Condition Application (LCA) with the U.S. Department of Labor and
submitting a petition with the USCIS. The application waiting period will
fluctuate but in general, is several months. The USCIS offers an option for
premium processing. For a $1,000 fee, the USCIS will process the petition in
15 days.
Our experienced attorneys work with the employer and employee to submit the
most complete and thorough petition, which emphasizes the applicant’s
education, qualifications, and experience. In addition, our attorneys know
the processes and procedures to work with various government agencies to
ensure the best possible outcome.
L Visa (Manager, Executive, or Specialized
Knowledge)
L-1 visa is granted to people who have worked outside of the U.S. as a
manager, executive, or in a position involving specialized knowledge, and
are now seeking to come to the U.S. to work in a related U.S. company in a
same capacity. Many international companies use a L visa to transfer their
executives, managers, or workers who are in position involving specialized
knowledge, to the U.S.
L-1 visa requirements:
- worker is an executive, manager, or in a position involving
specialized knowledge,
|
|
|
- worker has been employed continuously for at least 1 year within 3
years preceding the time of the L visa application,
|
|
- the company outside the U.S. is related to the U.S. company in
some form (parent-company, branch, affiliate, subsidiary, etc.),
|
|
- worker seeks to enter the U.S. temporarily, and
|
|
- worker will continue to work for that company as an executive,
manager, or in a position involving specialized knowledge.
|
|
|
|
|
|
A spouse and minor children of L-1 beneficiary may be granted L-2 visa if
accompanying or following to join him/her. L-2 visa beneficiary may become a
student in the U.S. but may not work in the U.S.
L Visa Application Process
The application process for the L visa includes the sponsor and/or applicant
filing a petition with the USCIS. The application waiting period will
fluctuate but in general, is several months. The USCIS offers an option for
premium processing. For a $1,000 fee, the USCIS will process the petition in
15 days.
Our experienced attorneys work with the sponsor and/or applicant to submit
the most complete and thorough petition, which emphasizes the applicant’s
education, qualifications, and experience. In addition, our attorneys know
the processes and procedures to work with various government agencies to
ensure the best possible outcome.
E Visa (Treaty Investors / Traders)
The E visa was established to provide reciprocal benefits to nationals of
the U.S. and foreign countries who invest or conduct trade between two
countries. Foreign nationals can get a visa by conducting trade with the
U.S. (E-1 visa) or by overseeing investment in the U.S. (E-2). The E visa
category can be used by various types of companies, whether owned by
individuals or large multinational corporations. The E visa can be used by
the company’s principals or by its employees.
E visa requirements:
- a treaty must exist between the United States and the country in
question
|
|
- majority ownership or control of the investing or trading company
must be held by nationals of the foreign country
|
|
- every employee or principal of the company seeking E visa status
must be a citizen of the foreign country where the company is based.
|
|
|
|
|
The “nationality” of the company engaging in trade or investment is the
nationality of those persons who own at least 50% of the stock of the
corporation, while the nationality of the persons owning the corporate stock
is their country of citizenship.
E Visa Application Process
The application process for the E visa includes the applicant filing a
petition with the USCIS. The application waiting period will fluctuate but
in general, is several months. The USCIS offers an option for premium
processing. For a $1,000 fee, the USCIS will process the petition in 15
days.
Our experienced attorneys work with the applicant to submit the most
complete and thorough petition, which emphasizes the applicant’s education,
qualifications, and experience. In addition, our attorneys know the
processes and procedures to work with various government agencies to ensure
the best possible outcome.
O Visa (Aliens with Extraordinary ability)
The O visa is for aliens with extraordinary ability in the sciences, arts,
education, business, or athletics, certain aliens accompanying or helping
those aliens, and their family members. There is no quota on the number of O
visas issued each year.
The O-1 visa can be given only on the basis of individual qualifications.
There are three standards for the O-1 visa. The most difficult standard
applies to those persons in the sciences, education, business, and
athletics; a much less difficult standard applies to individuals in the
arts, and a medium-level standard applies to those of extraordinary
achievement in the motion picture or TV industries. There are a wide variety
of requirements for the first category, but for the second category, that of
aliens of extraordinary ability in the arts, the alien must show
“distinction” in the field, as evidenced by a degree of skill and
recognition substantially above average such that a person is described as
prominent, leading, or well-known in the field of arts.
The O-2 visa is for individuals who will accompany and assist in the
artistic or athletic performance of an O-1 alien.
O Visa Application Process
The application process for the O visa includes the sponsor and/or applicant
filing a petition with the USCIS. The application waiting period will
fluctuate but in general, is several months. The USCIS offers an option for
premium processing. For a $1,000 fee, the USCIS will process the petition in
15 days.
Our experienced attorneys work with the sponsor and/or applicant to submit
the most complete and thorough petition, which emphasizes the applicant’s
education, qualifications, and experience. In addition, our attorneys know
the processes and procedures to work with various government agencies to
ensure the best possible outcome.
P Visa (Entertainers and Athletes)
The P category covers entertainers and athletes who cannot meet the standard
for extraordinary ability in the O category.
The P-1 visa is given to athletes who compete individually or as part of a
team at an internationally recognized level, and also to aliens who perform
with, or are an integral and essential part of the performance of an
entertainment group that has received international recognition as
“outstanding” for a “sustained and substantial period of time.” An
individual athlete may qualify for this visa but an individual entertainer
cannot—he or she must be part of a group.
Both types of applicants must submit proof of their status as athletes or
entertainers.
The P-2 visa covers artists and entertainers who wish to be admitted through
a reciprocal exchange program between a foreign and U.S.-based organization
that are engaged in the temporary exchange of artists and entertainers.
The P-3 visa covers artists and entertainers who will perform “under a
program that is culturally unique.” The P-3 alien must be coming to the U.S.
to perform, teach, or coach in culturally unique events.
P Visa Application Process
The application process for the P visa includes the sponsor and/or applicant
filing a petition with the USCIS. The application waiting period will
fluctuate but in general, is several months. The USCIS offers an option for
premium processing. For a $1,000 fee, the USCIS will process the petition in
15 days.
Our experienced attorneys work with the sponsor and/or applicant to submit
the most complete and thorough petition, which emphasizes the applicant’s
education, qualifications, and experience. In addition, our attorneys know
the processes and procedures to work with various government agencies to
ensure the best possible outcome.
R Visa (Religious Workers)
The R visa allows religious workers to come to the U.S temporarily to work
in religious occupations. Examples of R visa religious workers are monks,
nuns, missionaries, and religious brothers and sisters.
R visa requirements:
|
|
|
- the religious worker must have been a member of a religious
denomination having a non-profit religious organization in the U.S.
for at least 2 years immediately preceding the filing of the R-1 visa
application,
|
|
- the petitioning U.S. organization must be a non-profit religious
organization that is tax exempt, or one that would be tax exempt if it
had applied,
|
|
- the religious worker must enter the U.S. to pursue religious
vocation or occupation, and
|
|
- prove that there are sufficient funds to support the religious
worker’s financial needs without recourse to employment other than the
religious work for which the visa is granted.
|
|
|
|
|
|
|
|
The R-1 visa is usually issued for 3 years with an option of one 2 year
extension. Dependents such as spouse and children (under 21 years old) of R
visa religious worker are also entitled to R-2 visa. While dependents may
become students in the U.S, they may not be employed.
R Visa Application Process
The application process for the R visa includes the sponsor and/or applicant
filing a petition with the USCIS. The application waiting period will
fluctuate but in general, is several months. The USCIS offers an option for
premium processing. For a $1,000 fee, the USCIS will process the petition in
15 days.
Our experienced attorneys work with the sponsor and/or applicant to submit
the most complete and thorough petition, which emphasizes the applicant’s
education, qualifications, and experience. In addition, our attorneys know
the processes and procedures to work with various government agencies to
ensure the best possible outcome.
Getting an Immigrant Visa (Green Card / Legal
Permanent Residency) through Employment
In order to receive an Immigrant visa through employment, you must have a
job offer from a U.S. employer, specific education and work experience for
that job, and there must be no qualified American willing or able to take
that job.
In most cases, a Labor Certification is required to show that an alien is
not taking a position that a U.S. worker could fill. A Labor Certification
is not always necessary for the more skilled and unique jobs in question.
Immigrant visas are subject to a quota, however, at a minimum, 140,000 visas
are issued per year. In addition, Immigrant visas are allocated according to
five categories of preference.
The categories are as follows:
- First preference. (28.6%) Priority workers, who are defined
as persons of extraordinary ability, outstanding university professors
or researchers and executives or managers of multinational companies.
If you are a person of extraordinary ability, you do not even need a
job offer from a U.S. employer.
|
|
|
|
- Second preference. (28.6%) Professionals holding advanced
university degrees, and for persons of exceptional ability in the
sciences, arts or business. If your presence will benefit the U.S. in
the future, you may be exempted from having a job offer or Labor
Certification. Your positive impact must be national in scope, as well
as substantial, and it must be as a direct result of your talent or
skills.
|
|
- Third preference. (28.6%) This category is quite broad and
consists of professional workers, skilled workers, and unskilled
workers. All three categories require a job offer and a Labor
Certification. However, the number of green cards given to unskilled
workers is just a fraction of those given for professional or skilled
workers.
|
|
- Fourth preference. (7.1%) This category includes religious
workers such as ministers.
|
|
- Fifth preference. (7.1%) Investors willing to invest a
minimum of $500,000 to $1,000,000 in a U.S. business. The minimum
amount depends on the location of the business.
|
|
|
|
|
|
|
Immigrant Visa Process
The application process for the Immigrant visa includes the employer filing
a Labor Certification with the U.S. Department of Labor and/or submitting a
petition with the USCIS. The first category has no Labor Certification
requirements, and all of the others do. The first two preferences have an
easier process than the others due to the high skill level involved. The
application waiting period will fluctuate but in general, is several months
to several years if a Labor Certification is required.
Our experienced attorneys work with the employer and employee to submit the
most complete and thorough petition, which emphasizes the applicant’s
education, qualifications, and experience. In addition, our attorneys know
the processes and procedures to work with various government agencies to
ensure the best possible outcome.
FAQ:
Q. Where do I file the petition for alien worker?
A. The petition for the alien worker must
be filed at the USCIS office that
serves the place of your work.
Q. What is the process of becoming an immigrant based on
employment?
A. After obtaining the labor certification
from the Department of Labor, the
employer has to file a petition for the alien and wait for the visa number
to become current.
Q. What happens if the employer’s business goes bankrupt?
A. If the employer’s business closes down,
then the petition will be cancelled.
Q. What is a Labor Certification?
A. A Labor Certification is a process,
administered by the U.S. Department of Labor, which shows an applicant is
not taking a position that a U.S. worker could fill.
Q. What is the Labor Certification process?
A. The process starts with the U.S.
employer attempting to recruit an American worker for the job in question.
This attempt must fail for the Labor Certification process to succeed. The
U.S. employer must have published an advertisement in a newspaper to prove
that he/she made an honest effort to recruit an American worker, but that
there was no qualified or a willing American worker to take the job. When
the attempt to recruit an American worker fails, the employer then files for
a Labor Certificate and if the U.S. Department of Labor determines that the
U.S. employer could not find a qualified or a willing American worker, a
Labor Certificate is issued. |
