In addition to family based visa petitions, aliens may also seek permanent residency in the United States based upon employment status. There are many different types of employment-based visas (listed below), and the requirements for each are different. With a few exceptions, the employer is the “sponsor” of an employment or work visa and must supply detailed information about the employer’s business, the nature of the employee’s job position, any specialized skills required for the position, etc. as part of the application process. For this reason, obtaining an employment or work visa is also known as “labor certification.”
Hiring an experienced, qualified immigration attorney is an important step the applicant should consider, and can make the difference in the grant or denial of an employment-based visa. Properly completing the visa application, obtaining the necessary information and certifications from the employer, navigating the application process, responding to additional information requests from CIS and overcoming evidentiary hurdles that arise in some cases can be complex and require specialized legal knowledge. Unknowing mistakes made in the application, employer’s certification, or information request responses to CIS can be difficult to overcome, even with effective legal help. For these reasons, it is not recommended for an employment-based visa application to be filed without legal counsel.
How do I become an immigrant based on employment?
An immigrant is a foreign national who is authorized to live and work permanently in the United States. You must go through a multi-step process to become an immigrant based on employment. Generally, the employer must file employment visa applications and pay for at least some of the legal fees and filing costs as required by Department of Labor regulations. The process includes:
- In most employment categories (See EB-2 and EB-3 eligibility and filing information below), a U.S. employer must go through the labor certification process (also known as PERM by filing a labor certification request (ETA 9089) for you with the Department of Labor.
- CIS must approve an immigrant petition (Form I-140) that was filed for or by you, depending on the visa category.
- The State Department must give you an immigrant visa number, even if you are already in the United States. A visa number must be available to you, unless you are exempt from this requirement. The filing date of your labor certification application is referred to as the priority date, and is used to determine when a visa number is available for your case.
- If you are already in the United States, you must apply to adjust to permanent resident status when a visa number becomes available. If you are outside the U.S. when an immigrant visa number becomes available, you will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa.
Who is eligible for employment-based immigration?
There are five categories of permanent status employment-based immigration:
- First Preference (EB-1 priority workers): Aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers may seek permanent residence status as priority workers.
- Second Preference (EB-2 workers with advanced degrees or exceptional ability): Aliens who are members of the professions holding advanced degrees or their equivalent 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 may seek permanent resident status.
- Third Preference (EB-3 professionals, skilled workers, and other workers): Aliens with at least two years of experience as skilled workers, professionals with a baccalaureate degree, and others with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States, may seek permanent resident status.
- Fourth Preference (EB-4 special workers such as those in a religious occupation or vocation): aliens who, for at least two years before applying for admission to the United States, have been a member of a religious denomination that has a non-profit religious organization in the United States, and who will be working in a religious vocation or occupation at the request of the religious organization.
- Fifth Preference (EB-5 Employment Creation): Under the 1990 Immigration Act, Congress set aside up to 10,000 visas per year for foreign investors in new commercial enterprises who create employment for at least 10 individuals. There are two groups of investors under the program – those who invest at least $500,000 in “targeted employment areas” (TEA) (rural areas or areas experiencing high unemployment of at least 150% of the national average rate) or designated regional centers for the EB-5 program, and those who invest $1,000,000 anywhere else. No fewer than 3,000 of the annual allotment of visas must go to targeted employment areas. Another 3,000 are set aside for the regional centers. If you would like to be granted immigrant status in the United States for the purpose of engaging in a new commercial enterprise.
If you meet the criteria for any of the above categories, you may be eligible to obtain permanent status in the United States based upon employment. In addition to fairly stringent eligibility requirements, many of these categories have quotas, or limits, on the number of visas allotted each year as well as unique filing requirements and procedures.
In addition to the above employment visa categories, there are other possible avenues of obtaining temporary work visas to the U.S. based upon employment, investment or related visa categories (though not necessarily leading to a green card), including:
- E-1/E-2 Treaty Trader and Investor Visas – Investors and traders and their employees may receive visas to carry on their businesses in the U.S. if their home country has a commercial treaty with the U.S. conferring visa eligibility.
- H-1B Specialty Occupation (Professional) Visas – Professional workers with at least a bachelor’s degree (or its equivalent in work experience) may be eligible for a non-immigrant visa if their employers can demonstrate that they are to be paid at least the prevailing wage for the position.
- L-1 Intracompany Transfer Visas – L-1 visas are available to executives, managers and specialized knowledge employees transferring to their employer’s U.S. affiliate. Executives and managers holding L-1 visas may be eligible for permanent residency without the need for a labor certification.
- R-1 Religious Worker Visas – Religious workers may be eligible for an R-1 visa.
If you have questions about labor certification or employment-based visas or need legal advice or help filing an employment-based or related visa application, or appealing the denial of a work or employment visa petition, contact the Atlanta, Georgia immigration attorneys at Brownstein & Nguyen LLC today for a free consultation. We have over 20 years of experience successfully representing clients in all aspects of immigration law. Click here to see what our clients say about our experience and dedication in handling their legal matters.
