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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.

For information on specific Non-Immigrant temporary visas, click below:

H1-B Visa (Professional in a Specialty Occupation)
L Visa (Manager, Executive, or Specialized Knowledge)
E Visa (Treaty Investors / Traders)
O Visa (Aliens with Extraordinary Ability)
P Visa (Entertainers and Athletes)
R Visa (Religious Workers)

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.