Employment Immigration Lawyers

Typically, a foreign national is not authorized to work in the U.S. without obtaining the proper documentation. An employment visa allows an immigrant to live and work in the U.S. based on their profession, skills, and experience. In many cases, once the immigrant worker’s petition is approved, their spouse and minor unmarried children under 21 may also apply for immigrant visas.

In most cases, an immigrant worker may not file a petition on their own. Almost always, work visas require an employer to sponsor the applicant. In many cases, the applicant needs to have a job offer in place before beginning the application process.

Generally, there are two types of work visas: temporary and permanent. Non-immigrant visas confer temporary status to work in the U.S., while immigrant work visas grant permanent resident status. Temporary work visas are issued to non-immigrants so that they can enter the U.S. for a specific work purpose, and only for a limited time. A temporary work visa allows the person to engage only in the work for which the visa was approved.

Permanent employment visas allow the petitioner to seek permanent residency in the U.S. These visas are in place for immigrants with the right combination of skills, education, and/or work experience. According to the State Department, every year, about 140,000 permanent employment-based immigrant visas are made available to qualified applicants.

How do employers obtain labor certification?

In almost all employment visa cases, it is necessary to obtain certification from the U.S. Department of Labor before the work visa case may proceed. Labor certification allows an employer to hire a foreign worker to fill a job essential to the U.S. economy. To do so, the employer must demonstrate that there are insufficient qualified U.S. workers available and willing to perform the work at the prevailing wages. This process is intended to make sure that hiring an immigrant worker will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.

How much are the fees?

According to the State Department, fees are charged for the filing of an Immigrant Petition for an Alien Worker form, as well as processing an immigrant visa application. In addition, there are fees for the required medical examination, vaccinations, translations, and obtaining essential documents. The USCIS website provides a full list of filing fees.

What are some other forms that may be involved in employment-based immigration?

In addition to the above information about employment-based green cards, employment-based immigration involves many different types of visas and forms.

What are the preference categories for employment visas?

There are five categories of preference for permanent employment visas:

EB-1 is reserved for priority workers and persons of extraordinary ability, such as outstanding professors, researchers, or executives.
EB-2 is reserved for professionals holding advanced degrees and persons of exceptional ability in the sciences, arts, or business.
EB-3 is reserved for skilled workers whose jobs require a minimum of two years of training or work experience, professionals, and other workers.
EB-4 is reserved for certain special immigrants, including ministers of religion, former employees of the U.S. government abroad, and other specific categories of workers.
EB-5 is reserved for immigrant investors in new commercial enterprises in the U.S. that provide job creation.

Is it difficult to navigate the work visa process?

Figuring out the right visa, necessary qualifications, and application process can be difficult for the average person, without the help of a knowledgeable employment immigration lawyer. Some employment visa cases can take many years, as each preference category is numerically limited. A priority date will be assigned to your application, and immigrant visas cannot be issued until that priority date is reached. This might mean a waiting period of several years, particularly in oversubscribed categories.

Workers who are residing in their home countries will often need USCIS approval of their application before they may obtain a visa to enter the U.S. Those who are already in the U.S. in a lawful non-immigrant status must apply for a change of status for employment authorization.

Employment-Based Visas

This non-immigrant classification is not intended for U.S. employment. Instead, it is designed to allow an employee to temporarily enter the United States to perform job-related training for an already held, or offered position, that will ultimately be performed for the sponsoring employer outside the United States. In addition to being an invited trainee by a sponsoring employer, an H-3 non-immigrant visa may also be issued to those employed to train as a Special Education Exchange Visitor.

Exchange visitor visas are non-immigrant visas issued to individuals approved to participate in specific exchange visitor programs within the United States. At this time there are fifteen different categories of eligible participants under the Exchange Visitor Program.

To qualify for the benefits of an L-1A or an L-1B visa, both employee and employer must meet specific criteria. An employer is eligible to sponsor this visa classification if: The United States entity has a qualifying relationship with the foreign entity (parent, subsidiary, affiliate, etc.); and, both the foreign entity and the United States entity are engaged in regular, systematic business. In conjunction with the aforementioned requirements, the employee must also qualify for the benefit sought.

Specifically, the employee must either operate in a managerial/executive capacity (L-1A), or have highly specialized knowledge that is integral to the continued success of the company (L-1B).

This unique non-immigrant classification is only available to Canadian citizens (TN-1) and Mexican citizens (TN-2). This visa classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. To qualify for this visa, the proffered United States employment must meet specific criteria, in both qualification and job category, as set forth by the regulations.

The H-2A visa program allows U.S. employers to employ foreign nationals to meet temporary or seasonal agricultural labor needs. The H-2A visa has no numerical cap and is an excellent source of legal labor for agricultural employers.

The H-2B visa program allows U.S. employers to bring foreign nationals to meet temporary or seasonal non-agricultural labor needs. The H-2B visa program has a numerical cap of 66,000. The 66,000 visas are allocated equally in each half of the fiscal year, 33,000 on October 1 and 33,000 on April 1.

The H-1B visa program allows U.S. employers to fill certain specialty occupation positions with foreign nationals. The H-1B program has a numerical cap of 65,000 new visas each fiscal year and an additional 20,000 petitions filed on behalf of beneficiaries with master’s degrees or higher from a U.S. institution of higher education are exempt from the cap. The H-1B program has a registration and lottery system designed to save employers money by avoiding paying all the costs associated with an application if that beneficiary will not be accepted under the cap.

What are some potential issues that may complicate your employment visa petition?

While many employment visa cases are straightforward, there are numerous issues that can complicate the process. The following are just some examples

Having to address eligibility issues, such as potential problems obtaining a job offer
Needing to overcome inadmissibility issues, such as prior criminal convictions
Navigating the required documents and ensuring you are filing your petition in the correct category
The need to provide supplemental evidence, such as proof of your employment qualifications
Dealing with a prior refusal or denial of your immigrant visa application, which can complicate your current work visa application

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