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Immigration Law: A Closer Look at Employment-Based Immigration

- January 18, 2018
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The immigration system of the United States admits foreign workers with skills that will benefit the economy of the country. Several paths are available for foreigners to work in the U.S. temporarily or permanently. Employment-based visa classifications are indicated by the letter and number.

Employment-based immigration has two divisions: temporary and permanent. Various requirements must be met before a foreign national can gain entry into the United States via employment visa.

Temporary employment

For temporary employment, U.S. employers are permitted to hire and petition for foreign workers. The job offered is specific and available only for a limited time. Often, the foreign workers can only work for the employer who petitioned for them. In most cases, they are not allowed to find another employer. Then have to leave the U.S. when their employment ends or upon expiration of their status.

Features of temporary employment-based visa classification

Temporary employment-based visas are classified under the H and L visa categories. Three H visas and two L visas are available for temporary workers.

  1. H-1B

This is available for professionals under the ”specialty occupations” category. Each year, 65,000 visas are available. An additional 20,000 visas are available for foreign professionals who have obtained a master’s or higher degree in the United States. The initial visa has a three-year validity, which could be extended up to six years.

The employer must certify that an H-1B worker’s employment will not have an adverse effect on the working conditions and wages of U.S. workers employed in similar positions. The wage requirements must be followed by the U.S. employers. The foreign worker is allowed to bring their spouse and children who are under 21 years of age. The spouse and children must apply for an H-4 visa. In some cases the spouse is allowed to work while in the U.S.

  1. H-2A

This type of visa is available to agricultural workers from specific countries. There is no annual limit for the H-2A visa. The duration of the temporary employment visa under this category depends on the approved period. This can be renewed in one-year increments. The maximum allowed stay in the U.S. is three years.

The U.S. employer must also declared that no qualified American workers can fill the position. Moreover, the employer must follow the requirement on recruitment, wage, housing, benefits and transportation.

Their spouses and children can also apply for H-4 visa but they are not allowed to work.

  1. H-2B

This temporary visa is awarded to ”seasonal workers” in non-agricultural sector. The annual limit is 66,000 annually. The initial contract is one year, which could be renewed annually for up to three years. The requirements on employment like in H-2A must be met by the employer. Foreign workers under the H-2B visa may bring their spouse and children but they cannot seek employment.

  1. L-1A and L-1B

There is no annual limit in these types of visas. Qualified to apply for this visa are those foreign workers working is specific companies abroad that are related to employers in the United States. Eligible are those workers whose services U.S. employers specifically need. The initial visa duration is three years. L-1A visa holders may get an extension of up to seven years, while the L-1B visa can be extended up to five years. The spouse and children under 21 of foreign workers holding L-1A visas are allowed to come with the foreign worker but they are not allowed to work while in the U.S.

Permanent employment

Some foreign individuals can become lawful permanent resident, enabling them to live and work in the U.S. permanently and lawfully. They are allowed to apply for almost all jobs and can remain in the U.S. even if they are not working. If the immigrant has acquired permanent resident status via employment, he or she must wait five years before applying for U.S. citizenship.

Three steps are included in the process to adjust status to permanent resident based on employment.

  1. The employer who wants to petition on behalf of the foreign worker must get a certification from the U.S. Department of Labor. The employer must establish that no American worker is qualified, willing and available to fill the position at a salary that is greater than or equal to the current wage that is normally paid for said position in a specific location.
  2. The employer lodges the petition with the USCIS. In limited circumstances, immigrants are allowed to petition for themselves.
  3. If the foreign worker is already in the U.S. on a temporary visa, he/she can apply for adjustment of status to permanent resident once the employer’s petition is approved. This is still subject to visa availability.

It the conditions were met and the foreign worker is outside the U.S, or already in the country but opts to apply for an immigrant visa at a U.S. Consulate or Embassy outside the U.S., the person must file an immigrant visa application to be processed by the consular officer of the United States. In most cases, foreign workers who want to get permanent residency are in the U.S. already.

A thing to note: Permanent employment-based immigrant visas have a limit of 140,000 a year, including their minor children and eligible spouses. The total number of visas is divided into the five employment-based visa categories.

Employment-Based Immigrant Green Cards

Foreign nationals can enter the United States through employment-based immigration. They can become lawful permanent resident (Green Card holder) later. Five categories are available for foreigners for employment-based (EB) immigration:

  1. EB-1 or First Preference (Priority Workers)

This is for priority workers, including those with extraordinary abilities in athletics, business, education or science, outstanding professors and researchers and some multinational executives and managers. EB-1 applicants do not need a labor certification

  1. EB-2 or Second Preference (Professionals Holding Advanced Degrees and Persons of Exceptional Ability)

This is available for foreigners who hold advanced degrees in their professions or exceptional individuals. This requires labor certification to be processed, unless an individual obtains a national interest waiver.

  1. EB-3 or Third Preference (Skilled Workers, Professionals, and Unskilled Workers [Other Workers])

The third preference is available for professionals, skilled workers and others. A labor certificate is needed for this category.

  1. EB-4 or Fourth Preference (Certain Special Immigrants)

EB-4 is reserved for immigrants who are classified as ”special.” Falling into this category are alien minors who are wards of the U.S. courts, retired employees of international organizations, employees of Americans who served in foreign posts and some religious workers. For this a labor certification is not required.

  1. EB-5 or Fifth Preference (Immigrant Investors)

Individuals who are willing to invest $500, 000 or $1 million in a new commercial company in a specific employment area that will employ at least 10 American full time workers, may apply for an EB-5 employment-based immigration visa. This category does not require a labor certification.

Employment-based immigration process in detail

Each fiscal year from October 1 to September 30, the United States makes available about 140,000 visas for employment-based immigrants. Several process must be fulfilled before a foreign worker is allowed to come, live and work in the U.S.

Labor certification and filing the petition

A foreign worker can be considered qualified for employment-based immigration when an agent or prospective employer secures a labor certification approval. This is obtained from the U.S. Department of Labor. After receipt of the certification, the employer files Form I-140 (Immigrant Petition for Alien Worker) with the USCIS (U.S. Citizenship and Immigration Services) under a specific category.

First Preference

Under this category, the exceptional individuals, such as professors researchers must have a minimum three years’ experience in their professions and must be internationally recognized. The employee must be pursuing tenure, a research position comparable at an institution of higher learning or university seeking tenure track teaching.

Also included in this category are those exceptional individuals engaged in athletics, business, education, arts and sciences. They should show extensive documentation of their international or national recognition in their specific fields

Second Preference

Included in this category are multinational managers or executives with at least three years working experience with a U.S. company’s branch office, subsidiary, parent or affiliate company overseas. He or she should also be working in an executive or managerial position in the U.S.

The employer must first secure a labor certification, provide a job offer, and file the appropriate petition for the prospective employee. On the other hand, the prospective worker can apply for an exemption (National Interest Waiver) from the labor certification and job offer if this is warranted. About 28.6% of the yearly visa limit is reserved for second preference applicants plus the unused visa allocated for first preference applicants.

Third Preference

Foreign workers under this category need a job offer and a labor certification. There are more visas available here as the category receives 28.6% of the worldwide annual employment-based immigrant visa allocation plus the unused visas from the first and second preferences.

In this category, included are skilled workers whose previous jobs require 2 years minimum work experience or training in a permanent position. For professionals, they should have at the least a baccalaureate degree from a U.S. educational institution or its equivalent from a foreign school. For unskilled workers, they should have less than two years’ work experience or training in a permanent job.

Fourth Preference

Many individuals fall into this employment-based immigration category. The visa number available for this category is small, at 7.1% of the yearly worldwide quota.

Qualified for this category are the following:

  • S. broadcasters employed by the International Broadcasting Bureau of the Broadcasting Board of Governors
  • Religious ministers
  • Some former employees of employees of the U.S. government officials posted overseas
  • Some employees of the Canal Zone Government or the Panama Canal Company
  • Some employees of the government of the U.S. in the Panama Canal Zone
  • Some employees of the Canal Zone Government or Panama Canal Company on April 1, 1979
  • Qualified Afghan and Iraqi translators/interpreters for the Chief of Mission or the United States Armed Forces for at least one year (50 visas a year)
  • Threatened Afghan and Iraqi nationals who have worked with the U.S. government in Iraq after March 20, 2003 and before September 30, 2013 and in Afghanistan for less than a year after October 7, 2001.
  • Some foreign graduate of medicine
  • Some employees who have retired from international organizations and some of their unmarried sons and daughters and surviving spouses
  • Some civilians who have retired from NATO-6, their qualified unmarried sons and daughters and surviving spouses
  • Some overseas individuals recruited to serve in the U.S. Armed Forces
  • Those who had employment petitions that were canceled due to the 9/11 terrorist attacks
  • Wards of U.S. Courts
  • Some qualified religious workers

Fifth Preference

This preference is available for foreign capital investors in new commercial ventures that generate jobs for Americans.

Visa application

When the employer’s employee petition is approved, it is forwarded to the National Visa Center (NVC), which will give it a case number. When the priority date nears the qualifying date, the NVC tells the applicant to fill up Form DS-261, Choice of Address and Agent unless you are working with an immigration attorney already. The NVC processes the case and tells the applicant to pay the required fees.

After payment, applicant will be instructed to prepare all the documents needed to process the immigration application. The applicant’s documents that are written in a language other than English should have certified translation. Qualified family members accompanying the employment applicant must also process their immigration application.

Note: Each preference category has a visa limit.

Fees

The employer and the applicant have to pay the fees for different services, as follows:

  • Filing of Form I-140 (fee collected by the USCIS)
  • Immigrant visa application processing
  • Vaccinations and medical exams
  • Other fees – translations, photocopying, procurement of other documents, such as birth certificates, police certificates and passport, transportation

Applicants would receive instructions on when and where to pay the fees.

Documents

Generally, you’ll need to have the following documents:

  • Passport valid for 6 months after the intended date of arrival in the U.S.
  • Form DS-260, Immigrant Visa and Alien Registration Application
  • Two (2) 2×2 photographs (following the size, color and other requirements)
  • All required civil documents, including certified translations of documents not written in English
  • Proof of financial support
  • Complete medical exam forms
  • Proof of vaccinations

All the required documents should be submitted to the NVC. The agency will issue a visa interview date to the applicant while the documents are sent to the specific U.S. Embassy or Consulate.

The applicant should bring his/her passport to the interview and other documents that may be required. The applicant’s fingerprints will be taken. After the interview, the Embassy official or Consul will return the original and translated copies of the applicant’s documents.

Note: All the medical exams and required vaccinations should be completed before the visa interview. These should be performed by the panel physicians recommended by the NVC.

You will be informed right away if you will be issued a visa or not. If approved, the Embassy official who interviewed you will give back your passport with the visa attached as well as a sealed packet. You must not open this packet. Instead you should hand it to the immigration official when you land the U.S.

Note: You must pay the immigrant fee after you have received your visa and before you travel to the United States. Check the USCIS website for complete instructions and fee schedule.

The primary employment-based immigrant should arrive in the United States before or together with the accompanying family members.

Employment-based immigration application takes time to accomplish because of the numerical limit imposed on the category. The processing time varies. In some cases, the delay could be caused by the applicant not following the instructions. Some administrative issues may need further documentation or more processing time.

Therefore, candidates of employment-based immigration should not dispose of their property, make final travel arrangements, or quit their jobs before they receive their visas.

If you are one of the lucky ones to receive an employment-based visa, you might get the chance to permanently live and work in the United States.

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