Employment-based Immigration Law

Employment Based Temporary Visas - USCIS

B-1/B-2 VISITOR'S VISA

For Individuals coming to the U.S. for business or pleasure. B-1 business visitor visas are for a short duration and must not involve local employment. Nationals of certain countries may be eligible to visit the U.S. for up to 90 days without obtaining a visa.

E-1/E-2 TREATY TRADER INVESTOR VISAS

Investor and traders may receive visas to carry on their business in the U.S. if their home country has a commercial treaty with the U.S. conferring visa eligibility.

F-1 AND M-1 STUDENT VISAS

Available for those seeking to pursue a full course of study at a school in the United States may be eligible for a visa for the course of their study and in some cases, a period for practical training in their field of study.

H-1B SPECIALTY OCCUPATION VISAS

Professional workers with at least a bachelor’s degree (or its equivalent work experience) are eligible for non-immigrant visas if their employers can demonstrate that they are to be paid at least the prevailing wage for the position.

J-1 AND Q-1 EXCHANGE VISITOR VISAS

For those individuals coming to the U.S. in an approved exchange program. J-1 programs often covers students, short-term scholars, business trainees, teachers, professors, government visitors, camp counselors and au pairs.

K-1 FIANCEE VISAS

A fiancé(e) of a U.S. citizen is eligible for a non-immigrant visa conditioned on the conclusion of a marriage within 90 days.

L-1 INTRACOMPANY TRANSFER VISAS

L-1 visas are available to executive, managers and specialized knowledge employees transferring to their employer’s U.S. affiliate..

O-1 EXTRAORDINARY ABILITY WORKERS VISAS

The O-1 category is set aside for foreign nationals with extraordinary ability. This includes entertainers, athletes, scientist and business persons.

P-1 ARTISTS AND ATHLETES VISAS

This category covers athletes, artists and entertainers.

R-1 RELIGIOUS WORKER VISAS

Religious workers are eligible for R-1 visas if they meet the necessary requirements.

TN STATUS UNDER THE NORTH AMERICAN FREE TRADE AGREEMENT

A special category has been set up for nationals of Canada and Mexico under the provisions of the North American Free Trade Agreement.

E-1/E-2 Treaty Trader Investor Visas

Investor and traders may receive visas to carry on their business in the U.S. if their home country has a commercial treaty with the U.S. conferring visa eligibility.

Employment-Based Immigration - USCIS

The Immigration and Nationality Act provides 140,000 employment-based immigrant visas yearly. These available visas are divided among five preference categories. The employment-based immigration categories are based on a foreign worker's particular occupation and skills. The employment-based categories consists of five preference categories, each of which are subject to visa waiting lists. Employment-based categories are subject to annual visa limits. This means that there are waiting lists in many of the categories. Available visas are issued to beneficiaries in order of their priority date (the date of filing of the labor certification, if one is necessary, or the date of filing the I-140 petition.) Beneficiaries of India, China, The Philippines, and Mexico are subject to country-specific backlogs.

The First Preference (EB-1)

Eligibility for an employment-based, first-preference visa is based on

• Extraordinary ability
• Outstanding professor or researcher
• Multinational executive or manager

The first preference (EB1) category applicants do not require labor certification as a condition of visa issuance.

• Persons applying under the first subgroup are not required to have a job offer but must possess extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.
• Persons applying under the second subgroup must be internationally recognized as outstanding in their specific academic area, have a minimum of three years of experience in teaching or research in the area and be entering the U.S. in a tenure or tenure track teaching or comparable research position at an institution of higher education.
• Persons falling under the final subgroup must have been employed as a manager or executive outside the United States for the same U.S. employer, subsidiary or affiliate of the U.S. employer for at least one year within the last three. They must also be entering the United States to work as a manager or executive of the U.S. employer.

The Second Preference (EB-2)

The second preference category includes:

• members of the professions holding advanced degrees and
• aliens who, because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.

To qualify as a member of the professions the alien must have an advanced degree, which the INS takes to mean "any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate.'' This essentially means a United States masters degree or above. The INS has indicated that a U.S. or equivalent foreign baccalaureate followed by at least five years of progressive experience in the specialty will be the equivalent to a masters degree. If the profession requires a degree higher than a masters, the alien must have that degree.

The word "exceptional" in the context of this category means that the individual must have a degree expertise significantly above that ordinarily encountered. To qualify as an alien of exceptional ability for the purpose of second preference classification, the individual must have a degree of expertise significantly above the ordinary as shown by evidence satisfying at least three of the following criteria which appear at 8 CFR §204.5(k)(3)(ii):

• An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
• Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
• A license to practice the profession or certification for a particular profession or occupation;
• Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
• Evidence of membership in professional associations; or
• Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

Under 8 CFR §204.5(k)(3)(iii), if the above standards do not readily apply to the beneficiary's occupation, comparable evidence may be submitted to establish eligibility.

Under this category, the foreign worker must have a job offer and obtain a labor certification for the proposed position. Alternatively, if it can be shown that the alien's admission would be in the national interest, it is possible to obtain a waiver of both the job offer requirement and the labor certification requirement. This is known as a “National Interest Waiver".

The Third Preference (EB-3)

This category covers “Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers.” Skilled workers are those whose positions require a minimum of two years of training or experience. Professionals must possess a bachelor degree in the field and must establish that a bachelor degree is the normal requirement for entry into the profession. The final category of "other workers" means essentially unskilled workers.

Professionals and skilled workers are placed on the same waiting list for available visas. However, other workers are placed on a separate waiting list. Given the fact that backlog for "other workers" is effectively twenty years, the filing of such a petition for an unskilled worker is not recommended.

Third preference workers must have a job offer and obtain a labor certification. However, where Schedule-A precertification applies, the alien will be exempt from the labor certification requirement.

The Fourth Employment-Based Preference (EB-4)

Applicants in this category must be the beneficiary of an approved I-360, Petition for Special Immigrant, except overseas employees of the U.S. Government who must use Form DS-1884. Among the types of individuals who qualify under this preference are:

• Religious workers coming to carry on the vocation of a minister of religion, or to work in a professional capacity in a religious vocation, or to work for a tax-exempt organization affiliated with a religious denomination;
• Certain overseas employees of the U.S. Government;
• Former employees of the Panama Canal Company;
• Retired employees of international organizations;
• Certain dependents of international organization employees; and
• Certain members of the U.S. Armed Forces

The Fifth Employment-Based Preference (EB-5)

All applicants under this category must file a Form I-526, Immigrant Petition by an Alien Entrepreneur. To qualify, an alien must invest a minimum of either U.S. $500,000 or $1,000,000, depending on the employment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family

DV-1 Visas (Visa Lottery)

By law, the U.S. diversity immigration program makes available a maximum of 55,000 permanent residence visas each year to eligible persons (5,000 of the 55,000 are made available to those under the NACARA program). Visas are allotted in a random drawing to individuals.