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Employers of qualified candidates are able to obtain work visas in the United States for eligible foreign workers. A temporary, non-immigrant worker is an individual seeking to enter the United States for a specific employment purpose, for a temporary period of time. Once in the United States, those issued an employment-based non-immigrant visa are restricted to the activity or reason for which their non-immigrant visa was issued. Employers are also able to sponsor permanent, immigrant visas on behalf of qualified candidates, who meet the specific criteria of the preference categories.
Employment-Based Green Card
Through employment in the United States, various avenues, or ‘preferences,’ are offered for a foreign national to become a lawful permanent resident. Based upon the individual’s qualifications these employment-based (“EB”) preference immigrant categories include: (1) First preference (EB-1) – priority employees including individuals with extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors and researchers; or certain multinational managers and executives; (2) Second preference (EB-2) – employees who are members of the professions holding advanced degrees or who have exceptional ability (including requests for national interest waivers); and, (3) Third preference (EB-3) – skilled workers, professionals, or other workers.
H-3 Non-immigrant Trainees
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.
J-1 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.
L-1A/B Intracompany Transfers
In order 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).
TN-1/2 NAFTA Professionals
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.
Approximately 140,000 immigrant visas are available each fiscal year for aliens (and their spouses and children) who seek to immigrate based on their job skills. If you have the right combination of skills, education, and/or work experience and are otherwise eligible, you may be able to live permanently in the United States. The five employment-based immigrant visa preferences (categories) are listed below.
The E-2 visa is a non-immigrant classification that allows a national of a treaty country to be admitted to the U.S. to invest a “substantial amount of capital” in a U.S. business.
E-2 Treat Countries may be found here: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html.
The EB-5 category is an immigrant visa category that allocates approximately 10,000 new visas per year. The EB-5 visa category was created in 1990 to stimulate the U.S. economy. This category requires an investment of $1.8million or in circumstances where the investment is in a Targeted employment area (TEA), the minimum investment is $900,000.00.
One of the most common avenues for a foreign national to obtain legal permanent residence in the United States is through the family-based immigration process. As a spouse, parent, or child of a U.S. citizen or legal permanent resident, an individual may be eligible for permanent resident status through an adjustment of status application or alternatively, an immigrant visa application if they meet specific criteria.
A spouse of U.S. citizen who is the beneficiary of an I-130 petition filed by their U.S. citizen spouse and who remains abroad, may obtain a K-3 visa to allow their spouse to come to the United States while they are awaiting a decision on the I-130 petition. The K-3 visa was intended to reduce the amount of time that a U.S. citizen and their spouse would spend apart during the I-130 process. However, USCIS now generally processes the I-130 petition in less time than the K-3, thereby reducing the need for the K-3 visa overall.
K-1 Fiancé/fiancée Visa
The K-1 Fiancé visa allows U.S. citizens to bring their foreign fiancé(e) to the United States in order to get married. The U.S. citizen and fiancée must marry within 90 days of the fiancé(e) entering as a K-1 non-immigrant. Once married, the U.S. citizen may petition for the fiancé’s permanent resident status.
Particular relatives of U.S. citizens or permanent residents are permitted to request a provisional waiver of the unlawful presence ground of inadmissibility in order to obtain lawful permanent resident status before attendance at an immigrant visa interview at a U.S. Consulate abroad. In order to qualify for an I-601A visa, applicants must demonstrate extreme hardship to their qualifying U.S. citizen or permanent resident relative.
I-130 Family Petition & Immigrant Visa
United States citizens or permanent residents who wish for their eligible relatives to immigrate to the United States as permanent residents begin the first step of the permanent residence process by filing an I-130 petition. The I-130 petition can be filed for eligible relatives inside the United States or those residing outside the United States. In order to complete the permanent residence process, beneficiaries must either apply for adjustment of status inside the United States or an immigrant visa at a U.S. consulate abroad.
Removal of Conditions (I-751)
Marriage-based applicants for permanent resident status who were married to their spouse for less than two years at the time their permanent resident status is approved are granted permanent resident status on a conditional basis. Conditional Permanent Residents must then apply to remove the conditions on their permanent resident status in the 90 day period prior to expiration. USCIS seeks to confirm the continuation and bona fide nature of the marriage through the removal of conditions process and extensive documentation is required for the application.
Adjustment of Status / Green Card Process (I-485)
Adjustment of Status, also known as “the green card process”, allows an applicant lawfully admitted to the United States to change their status to permanent resident status. Applicants most commonly adjust their status through a qualifying family member’s sponsorship, employment-based sponsorship, or a self-petition. While an application for adjustment of status is pending, an applicant can lawfully remain in the United States and may also be eligible for employment and travel authorization.
In order to become a United States citizen, applicants must go through the naturalization application process. Naturalization is available to applicants generally who have held legal permanent resident status (i.e. the green card) for at least 5 years or 3 years, if married to and living with a U.S. citizen. Benefits of naturalization include the ability to vote in U.S. elections, protection from deportation, and the ability to sponsor certain family members for permanent resident status.
There are various immigration programs which allow for either temporary or permanent immigration status, based on humanitarian reasons. The current programs provide immigration relief to victims of particular serious crimes, domestic violence, and human trafficking, as well as protection from deportation and employment authorization for certain individuals who entered in the United States as children. Many of these programs even provide a pathway to permanent resident status and eventually U.S. citizenship is certain requirements are met.
Individuals inside the United States who have been persecuted or fear persecution because of race, nationality, religion, membership in a particular social group, or political opinion may seek asylum in the United States. Applicants must apply within one year of arrival to the United States unless an exception applies. Asylum provides applicants and their spouse and children under 21, refuge in the United States as well as an avenue to permanent resident status.
Under the Violence Against Women’s Act, also known as “VAWA”, victims of abuse by a U.S. citizen spouse, parent, or child or LPR spouse or parent may self-petition for their own immigrant visa application and permanent resident status. Applicants do not require assistance from their abusers to file an application which affords them safety and independence from their abuser as well as a viable means for remaining permanently in the United States.
Deferred Action for Childhood Arrivals, also known as “DACA”, allows certain individuals who came to the United States as children and meet several requirements to remain temporarily in the United States. DACA provides a renewable two-year deferred action protection from deportation as well as employment authorization but not lawful status in the United States. In limited circumstances, DACA recipients are eligible for travel authorization.
The U-visa is available to victims of particular qualifying crimes who have suffered substantial physical or mental abuse as a result of the crime and have been helpful in the investigation or prosecution of the crime. The U-visa provides a temporary non-immigrant status, employment authorization once approved, and a pathway to permanent resident status.
The T-visa is available to victims of a severe form of sex or labor human trafficking who have been helpful to law enforcement in the investigation or prosecution of the crime. The T-visa provides a temporary non-immigrant status, employment authorization once approved, and a pathway to permanent resident status.