Employment-Based Immigration

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.

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.

Frequent Questions About Employment-Based Immigration

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. 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.

H1-B Visa

The H1-B visa is issued to those who wish to temporarily work in the United States as a professional in a specialty occupation. Currently, the number of H1-B visas granted each year is capped at 65,000.

H1-B visa requirements:

you must be coming to the U.S. to perform services in a specialty occupation with a college degree or its equivalent in work experience, or be a distinguished fashion model
you must have a job offer from a qualified U.S. employer for work to be performed in the U.S., and you must be paid according to market value
you must have the requisite background to qualify for the job you are offered
your employer must have filed an attestation with the Dept. of Labor
your job must require a bachelor’s degree or higher, and this is standard in the industry or among similar positions in similar organizations.

Some examples of specialty occupations include accountants, upper-level business managers, physical therapists, engineers, and scientists.

H1-B Application Process:

The application process for the H1-B visa includes the employer filing a Labor Condition Application (LCA) with the U.S. Department of Labor and submitting a petition with the USCIS. The application waiting period will fluctuate but in general, is several months. The USCIS offers an option for premium processing. For a $1,000 fee, the USCIS will process the petition in 15 days.

L Visa (Manager, Executive, or Specialized Knowledge)

L-1 visa is granted to people who have worked outside of the U.S. as a manager, executive, or in a position involving specialized knowledge, and are now seeking to come to the U.S. to work in a related U.S. company in a same capacity. Many international companies use a L visa to transfer their executives, managers, or workers who are in position involving specialized knowledge, to the U.S.

L-1 visa requirements:

worker is an executive, manager, or in a position involving specialized knowledge,
worker has been employed continuously for at least 1 year within 3 years preceding the time of the L visa application,
the company outside the U.S. is related to the U.S. company in some form (parent-company, branch, affiliate, subsidiary, etc.),
worker seeks to enter the U.S. temporarily, and
worker will continue to work for that company as an executive, manager, or in a position involving specialized knowledge.

A spouse and minor children of L-1 beneficiary may be granted L-2 visa if accompanying or following to join him/her. L-2 visa beneficiary may become a student in the U.S. but may not work in the U.S.

L Visa Application Process

The application process for the L visa includes the sponsor and/or applicant filing a petition with the USCIS. The application waiting period will fluctuate but in general, is several months. The USCIS offers an option for premium processing. For a $1,000 fee, the USCIS will process the petition in 15 days.

Our experienced attorneys work with the sponsor and/or applicant 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.

E Visa (Treaty Investors / Traders)

The E visa was established to provide reciprocal benefits to nationals of the U.S. and foreign countries who invest or conduct trade between two countries. Foreign nationals can get a visa by conducting trade with the U.S. (E-1 visa) or by overseeing investment in the U.S. (E-2). The E visa category can be used by various types of companies, whether owned by individuals or large multinational corporations. The E visa can be used by the company’s principals or by its employees.

E Visa requirements:

a treaty must exist between the United States and the country in question
majority ownership or control of the investing or trading company must be held by nationals of the foreign country
every employee or principal of the company seeking E visa status must be a citizen of the foreign country where the company is based.

The nationality of the company engaging in trade or investment is the nationality of those persons who own at least 50% of the stock of the corporation, while the nationality of the persons owning the corporate stock is their country of citizenship.

E Visa Application Process

The application process for the E visa includes the applicant filing a petition with the USCIS. The application waiting period will fluctuate but in general, is several months. The USCIS offers an option for premium processing. For a $1,000 fee, the USCIS will process the petition in 15 days.

Our experienced attorneys work with the applicant 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.

O Visa (Aliens with Extraordinary Ability)

The O visa is for aliens with extraordinary ability in the sciences, arts, education, business, or athletics, certain aliens accompanying or helping those aliens, and their family members. There is no quota on the number of O visas issued each year.

The O-1 visa can be given only on the basis of individual qualifications. There are three standards for the O-1 visa. The most difficult standard applies to those persons in the sciences, education, business, and athletics; a much less difficult standard applies to individuals in the arts, and a medium-level standard applies to those of extraordinary achievement in the motion picture or TV industries. There are a wide variety of requirements for the first category, but for the second category, that of aliens of extraordinary ability in the arts, the alien must show “distinction” in the field, as evidenced by a degree of skill and recognition substantially above average such that a person is described as prominent, leading, or well-known in the field of arts.

The O-2 visa is for individuals who will accompany and assist in the artistic or athletic performance of an O-1 alien.

O Visa Application Process

The application process for the O visa includes the sponsor and/or applicant filing a petition with the USCIS. The application waiting period will fluctuate but in general, is several months. The USCIS offers an option for premium processing. For a $1,000 fee, the USCIS will process the petition in 15 days.

P Visa (Entertainers and Athletes)

The P category covers entertainers and athletes who cannot meet the standard for extraordinary ability in the O category.

The P-1 visa is given to athletes who compete individually or as part of a team at an internationally recognized level, and also to aliens who perform with, or are an integral and essential part of the performance of an entertainment group that has received international recognition as “outstanding” for a “sustained and substantial period of time.” An individual athlete may qualify for this visa but an individual entertainer cannot—he or she must be part of a group.

Both types of applicants must submit proof of their status as athletes or entertainers.

The P-2 visa covers artists and entertainers who wish to be admitted through a reciprocal exchange program between a foreign and U.S.-based organization that are engaged in the temporary exchange of artists and entertainers.

The P-3 visa covers artists and entertainers who will perform “under a program that is culturally unique.” The P-3 alien must be coming to the U.S. to perform, teach, or coach in culturally unique events.

P Visa Application Process

The application process for the P visa includes the sponsor and/or applicant filing a petition with the USCIS. The application waiting period will fluctuate but in general, is several months. The USCIS offers an option for premium processing. For a $1,000 fee, the USCIS will process the petition in 15 days.

R Visa (Religious Workers)

The R visa allows religious workers to come to the U.S temporarily to work in religious occupations. Examples of R visa religious workers are monks, nuns, missionaries, and religious brothers and sisters.

R visa requirements:

the religious worker must have been a member of a religious denomination having a non-profit religious organization in the U.S. for at least 2 years immediately preceding the filing of the R-1 visa application,
the petitioning U.S. organization must be a non-profit religious organization that is tax exempt, or one that would be tax exempt if it had applied,
the religious worker must enter the U.S. to pursue religious vocation or occupation, and
prove that there are sufficient funds to support the religious worker’s financial needs without recourse to employment other than the religious work for which the visa is granted.

The R-1 visa is usually issued for 3 years with an option of one 2 year extension. Dependents such as spouse and children (under 21 years old) of R visa religious worker are also entitled to R-2 visa. While dependents may become students in the U.S, they may not be employed.

R Visa Application Process

The application process for the R visa includes the sponsor and/or applicant filing a petition with the USCIS. The application waiting period will fluctuate but in general, is several months. The USCIS offers an option for premium processing. For a $1,000 fee, the USCIS will process the petition in 15 days.

Our experienced Oregon attorneys work with the sponsor and/or applicant 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.