Employment Immigration
In an increasingly globalized economy, it is important for United States businesses to obtain the best talent available at competitive compensation rates, whether from within or outside the United States. Accordingly, employers must be adept at dealing with United States employment visa requirements to recruit and retain talent on a global scale. At Shestopalko law we have the necessary skill set to develop effective immigration solutions for business of all sizes and needs. As Shestopalko Law we are passionate about helping immigrants obtain employment-based visas. We are immigrants ourselves and understand what drives people to want to live and work here and contribute to this great country. We can put our skill, experience and resources to work for you in making the visa process go as smoothly and efficiently as possible.
Non-Immigrant (Temporary) Work Visas
H-1B Visa (Specialty Occupation Workers)
The H-1B visa is the most commonly sought visa for professional workers. The H-1B visa is a non-immigrant visa that allows United States companies to employ graduate level workers in specialty occupations that require theoretical or technical expertise in specialized fields such as in engineering, IT, finance, accounting, medicine, mathematics, architect and others. The job position offered by United States employer must require theoretical and practical application of a body of highly specialized knowledge, such as a bachelor’s degree or equivalent experience.
To be eligible for sponsoring an H1-B visa, the employer must prove that:
- The position offered requires knowledge, both theoretical and applied, which is almost exclusively obtained through studies at an institution of higher learning
- The position requires a specific course of study which relates directly to the position
- Attainment of a bachelor’s or higher degree in the specific activity (or its equivalent) is a minimum requirement for the position
To be eligible for an H1-B visa, the non-citizen must demonstrate that he or she has:
- Full state licensure to practice in the occupation, if such licensure is required
- Completed the degree required for the occupation or possess experience in the specialty equivalent to the completion of such degree
- Recognition of expertise in the specialty through progressively responsible positions relating to the specialty
The United States employers are required to pay the prevailing wage for the offered position and therefore have to file for Labor Certification approval by the Department of Labor attesting that the prevailing wage will be paid to the alien worker.
After obtaining Labor Certification approval, application for the H-1B visa is made with the United States Citizenship and Immigration Services. Processing times for an H-1B visa generally ranges from two to six months.
*Candidates already working on H-1B status may “port” to another employer and begin working when petition to transfer is filed by the new employer.
Employers sponsoring a job candidate who requires a new H-1B will have to contend with the annual quota of 65,000 visas available per year with an additional 20,000 for applicants holding advanced United States degrees. The cap is reached very quickly, so employers have to file petitions by early April for an October 1 employment start date. Certain higher education institutions and nonprofit or government research organizations are exempt from the cap.
H-1B petitions may be approved for up to three years and can be extended for up to a total of six years. The six-year maximum can be extended if the H-1B visa holder is the beneficiary of a labor certification filing pending one year or more. Trips outside the United States while on H-1B status can also be “recaptured” to extend the maximum stay on H-1B status.
Benefits for H-1B visa holders:
- Alien does not have to maintain a foreign residence and show intent to return to his or her home country while applying for the visa
- Alien’s family (dependents) can stay with the alien in the United States as long as the alien maintain his or her H1-B status. Alien’s family can attend school and work (in some cases).
- Alien can freely travel in and out of the United States
- Alien can change (“port”) jobs if alien can show a new job offer and have a new petition approved on his or her behalf
H-2B Visas (Temporary Non-Agricultural Workers)
The H-2B visa is a non-immigrant visa that allows United States companies to employ to hire foreign national workers to come to the United States and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent. The H-2B visa covers unskilled or job-trained workers in a variety of non-agricultural industries
To be eligible for sponsoring an H2-B visa, the employer must prove that:
- The job and the employer’s need must be one time, seasonal, peak load or intermittent
- The job must be for less than one year or one-time need
- There must be no qualified and willing United States workers available for the job
To be eligible for an H2-B visa, the non-citizen must demonstrate that he or she has:
- A valid job offer from a United States employer to perform temporary or seasonal non-agricultural work
- The intention to return to his or hers home country on expiration of the visa
The United States employers are required to pay the prevailing wage for the offered position and therefore have to file for Labor Certification approval by the Department of Labor attesting that the prevailing wage will be paid to the alien worker.
After obtaining Labor Certification approval, application for the H-2B visa is made with the United States Citizenship and Immigration Services. Processing times for an H-2B visa generally ranges from two to four months.
Employers sponsoring a job candidate who requires a new H-2B will have to contend with the annual quota of 66,000 —33,000 for workers who begin employment in the first half of the fiscal year (Oct. 1 – Mar. 31) and 33,000 for workers who begin employment in the second half of the fiscal year (Apr. 1 – Sept. 30). The cap is reached very quickly, so employers have to file petitions months in advance.
The United States employer’s need may generally be only for one year therefore the H2-B visas are generally issued for a one year period. However, the need, under the ‘extraordinary circumstances’ provision, may ultimately be longer than one year if the extended need could not be anticipated at the time of application. The H-2B visa can be extended by the employer who applies for re-certification for an additional two years with one year extensions, but on each new application, the employer must justify the reason for the H-2B extension request. The visa may also extend by changing to a new employer who had completed the temporary Labor Certification.
Benefits for H-2B visa holders:
- Alien can enter the United States for temporary work
- Alien can bring his or her family (dependents) to reside in the United States
- Alien can freely travel outside United States
- Alien can change (“port”) jobs if alien can show a new job offer and have a new petition approved on his or her behalf
TN Visas (NAFTA Professional Workers)
Pursuant to the NAFTA agreement, the non-immigrant TN visa permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to work in certain professional fields.
To be eligible for a TN visa, the alien must prove that:
- He or she is a Canadian or Mexican citizen
- He or she will work in a profession that is on the qualified NAFTA list
- He or she has a valid job offer from a United States employer
- He or she holds the required licenses, degrees and/or experience to perform the job offered
- He or she intends to depart the United States on completion of the employment or authorized of stay
Canadian nationals may apply for the TN directly at any port of entry. Mexican nationals must apply for a TN visa at a United States embassy in Mexico. Citizens of both countries must maintain a home country residence and citizens of both countries must prove that they have no intention of abandoning their home country residences.
There is NO annual quota or cap on the number of TN visas issued each year.
The TN visa status is granted in one-year increments and can be extended indefinitely.
Benefits of a TN Visa:
- Canadian nationals may obtain the TN visa directly at the border. They do not require prior petition approval by the United States Citizenship and Immigration Services or a Labor Certification from the Department of Labor
- Canadian and Mexican nationals can maintain TN visa status indefinitely by requesting extensions based upon their qualifying professional activity
- Canadian and Mexican nationals are entitled to request TD dependent visa status for their spouse and children under the age of 21.
- Canadian and Mexican nationals’ dependents (families) may attend school in the United States as long as these dependents (families) continue to qualify under the TD visa classification criteria
- Canadian and Mexican nationals with TN/TD visas can freely travel in and out of the United States
L-1 Visas (Intracompany Transferees)
An alien working for an affiliate, subsidiary, parent or branch of a United States company located outside of the United States may be eligible for the L-1 visa. Internal (intracompany) transferees who have been employed outside the United States by an affiliate, subsidiary, parent or branch of the United States company in a in certain positions may come to work for the same company in the United States.
The L-1 visa is split into two categories:
- L-1A (intracompany executives and managers) allows a United States organization to transfer an executive or a manager from a parent company, subsidiary or other affiliate abroad to reside and work the United States
- L-1B (intracompany specialized knowledge professional) allows a United States organization to transfer workers with special knowledge of the employer’s business from an overseas parent company, subsidiary or other affiliate to the United States
To be eligible for sponsoring an L-1 visa, the employer must prove that:
- A qualifying relationship exist between the United States company and the foreign company abroad where the alien is employed
- Both the foreign company and the United States company remain open, active and viable for the entire duration of alien’s employment in the United States.
To be eligible for an L-1 visa, the non-citizen must demonstrate that he or she:
- Has been employed overseas by the transferring organization for at least one year within the past three years and that he or she will be performing duties in the United States for the same employer or an affiliate
- Is a manager, executive or a specialized knowledge employee
L-1 visa applications are first made on behalf of the foreign employee with the United States Citizenship and Immigration Services. Processing times vary and can be from two weeks to six months. Premium processing is also available for quicker adjudication.
There is NO annual quota or cap on the number of L-1 visas issues each year.
Initial L-1 visa status is generally issued for up to three years and can be extended for a maximum of seven years for an L-1A or five years for an L-1B.
Benefits of a L-1 Visa:
- Alien may come to the United States on an L-1 visa intra-company transfer and at the same time, lawfully seek to become a lawful permanent resident
- Alien can freely travel in and out of the United States
- Alien spouse and children under the age of 21 can reside in the United States
- Alien’s children under 21 and spouse may attend school in the United States
- Alien’s spouse can apply for a work permit and upon approval engage in employment
The L-1 visa is one of the options available to employees of international companies to transfer and establish a new office in the United States
Other Temporary Non-Immigrant Work Visas
Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study that he or she studied in the United States. Eligible students can apply to receive up to 12 months of OPT employment authorization after he or she completed the education in the United States. Since 2016, the Department of Homeland Security allows certain F-1 students who received science, technology, engineering, and mathematics (STEM) degrees, and who meet other specified requirements, to apply for a 24-month extension of their post-education (completion) OPTs.
The O-1 visa may be used by aliens with extraordinary ability in the sciences, arts, education, business or athletics. This extraordinary ability must be demonstrated by national or international acclaim. Extraordinary ability must be documented with evidence of awards received, published material in major media and publishings in scholarly journals. O-1 status may be granted for a maximum of three years at a time and may be extended indefinitely in one-year increments.
H-3 visa allows aliens to receive training in a field that is not academic or medical at the request of a sponsoring United States organization or individual. An H-3 trainee cannot engage in productive employment in the United States. The training must not be available in the applicant’s home country. The applicant must show that he or she has a foreign residence he or she has no intention of abandoning. H-3 status is granted for a maximum of two years.
These categories only touch upon some of the most common Temporary Non-Immigrant Work visas and the descriptions are general. Employment Immigration is a complicated area of immigration law and the attorneys at Shestopalko Law are happy to discuss your particular skill set and unique situation to fit your particular immigration needs.
Immigrant (Permanent) Work Visas
A job candidate or an employee (who may already have temporary non-immigrant visa status) can be sponsored for permanent residency (green card) by an employer. There are different types (preferences) of petitions for immigrant work visas. There are four most common types of (permanent) employment visas:
- First preference (EB-1)
- Second preference (EB-2)
- Third preference (EB-3)
- Fourth preference (EB-4)
Generally, the “higher” the type (preference category) of employment visa the shorter the wait time for obtaining an immigrant visa. For a current list of priority dates being approved for visas (the date when Department of Labor received the labor certification application), check the United States Department of State’s current Visa Bulletin. Once a priority date is current, as to the date of filing with the USCIS or Department of Labor, the beneficiary worker can apply concurrently for adjustment of status (getting a green card) if legally in the United States or complete consular processing at a United States embassy abroad.
Generally, applicants and their employers must follow a three step process to receive an Immigrant Work Visa:
- *The employer who wishes to hire a foreign worker has to file with the United States Department of Labor a Permanent Labor Certification using Program Electronic Management Review (PERM) Additionally, the United States employer must certify that a job opening is available in a specified professional field, that the job is also available to United States workers, that a foreign worker is needed, and that the pay for the job is at a prevailing industry rate (a rate other similar United States workers are paid in the specified geographical area). Lastly, the employer will have to go through an extensive recruiting process by running advertisement campaign to ensure that no qualified United States workers are available to take the position. If all of the requirements are met, the Department of Labor will issue a PERM form, which is necessary to proceed to the second step.
- After the PERM form is received, the employer wishing to sponsor a foreign worker for an employment based green card must complete and file Form I-140 to the United States Citizenship and Immigration Services.
- Once Form I-140 petition is received by the United States Citizenship and Immigration Services, the applicant must wait for his or her priority date to be eligible to receive a green card or a visa. The priority date depends on when the application is received by the United States Citizenship and Immigration Services. For a current list of priority dates, see the United States Department of State’s current Visa Bulletin.
*Certain workers within the first preference category (EB-1) and within the second preference category (EB-2) may skip the first step.
The United States employer must run three kinds of advertisements to receive a PERM from the Department of Labor:
- Job order – an advertisement that must run for at least thirty days on a website or job bank designed by the States Workforce Agency
- Newspaper advertisements – an advertisement has to be placed in a high-circulation paper on two separate Sundays
- Three auxiliary advertisements– an advertisement has to be posted for 10 consecutive business days on Internet websites, radio stations, or college campuses
After the advertisements have run their course, thirty days must be given for potential applicants to respond. During this time, the United States employer must consider the qualified candidates and give reasons for rejecting each one.
The Department of Labor performs two kinds of audits: random audits designed to maintain program integrity and targeted audits to stop employers from taking advantage of the system.
Targeted audits can be triggered by incomplete or inconsistent information on the advertising report. It can also occur if the Department of Labor determines that the report does not match what was predicted for employer’s industry and geographic location.
The employment petition usually takes an average of six months to be processed, though it depends on the service center that is processing the petition. In many cases, the I-140 can be expedited to 15 calendar days if the immigrant or employer chooses to use the optional premium processing service for an additional fee.
However, petitions submitted for the EB-1C and EB-2 NIW are unavailable for the premium processing service. It is also important to note that premium processing does not increase chances for approval and cannot be used to expedite any other step in the employment-based green card process.
Benefits of an Immigrant (Permanent) Work Visa:
- An immigrant may reside permanently (with a green card) in the United States.
- An immigrant may be employed in the United States
- An immigrant may eventually Naturalize to become a United States citizen
- An immigrant can travel freely in and out of the United States
- An immigrant can apply for dependent visas for alien’s spouse and unmarried children under 21 years to come to the United States on a permanent resident status (green card)
Employment First Preference (EB-1)
The EB-1 visa (category/preference) is an immigrant visa which allows foreign nationals who are the top in their professional field to obtain permanent residency in the United States.
Within the EB-1 category/preference there are three sub-groups:
- EB-1A: Extraordinary Workers who poses extraordinary ability in the sciences, arts, education, business, or athletics.
- EB-1B: Outstanding professors and researches with at least three years of experience in teaching or research, who are recognized internationally.
- EB-1C: Multinational executives and multinational managers who have been employed by the overseas affiliate, parent, subsidiary, or branch of the United States employer and who are coming to work in a managerial or executive capacity in the United States.
EB-1A: Extraordinary ability workers must demonstrate sustained national or international acclaim for expertise in the arts, education, athletics, or business. No United States employer sponsorship or job offer is required. The extraordinary ability applicant must demonstrate the following:
- Sustained national or international recognition as evidenced through extensive documentation.
- Intention to enter the United States to continue work in the area of extraordinary ability.
- How the prospective work will substantially benefit the United States
EB-1B: Outstanding professors and researchers must demonstrate that they have at least three years of experience in teaching or research and are recognized internationally as experts in their field. The professors or researchers must have a job offer and sponsoring employer to qualify. They must be entering the United States to pursue tenure teaching or a comparable research position at a university or other institution of higher education.
EB-1C: Multinational executives or multinational managers must demonstrate that they have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary or branch of the United States employer. The applicant needs to demonstrate that he or she is coming to continue work in a managerial or executive capacity. Additionally, the applicant must show that the employment outside the United States was in a managerial or executive capacity and with the same employer, an affiliate or a subsidiary of the petitioning employer.
The yearly quota or cap of EB-1 visas issued each year is 40,000 visas (subject further to per-country limits).
The EB-1 is a highly popular option because it does not require a PERM labor certification. The Labor Certification is typically an extensive and costly filing process in order to determine if the requirements of the available position are able to be filled by a United States worker.
Additionally, EB-1A (Extraordinary Ability) workers do not require a permanent job offer from a United States employer. Thus, the applicant has the ability to apply for the petition on his/her own behalf (self-petition).
Another advantage in obtaining an EB-1 Green Card is that the visas are usually current. This means that the applicant does not have to wait an extended period of time before the application is reviewed and can receive a Department of State immigrant visa number. This puts the applicant on a faster track to file an adjustment of status and initialize the green card process.
Employment Second Preference (EB-2)
The EB-2 visa (category/preference) is an immigrant visa which allows foreign nationals holding an advanced degree or its equivalent, or foreign national who have exceptional ability to obtain permanent residency in the United States.
Within the EB-2 category/preference there are three sub-groups:
- EB-2A: This category is for foreign national professionals with an ‘advanced degree’ (masters degree or higher) and with a job offer from a United States employer.
- EB-2B: This category is for foreign nationals with ‘exceptional ability’ in the sciences, business or arts and with a job offer from a United States company.
- EB-2C: This category is for foreign nationals with exceptional ability, or an advanced degree, who can show that his or her activities will substantially benefit the United States national interest
EB-2A: Advanced Degree foreign workers must:
- Prove that he or she has a degree beyond a United States bachelor’s degree, such as a Master’s or Doctorate, or its foreign equivalent OR
- He or she has a bachelor’s degree and at least 5 years of work experience in the field AND
- Be approved by the United States Department of Labor’s Foreign Labor Certification Process.
EB-2B: Exceptional Ability foreign workers must:
- Prove that he or she has a specialized degree and holds a significant competence in one of the following areas: art, business, or science. AND
- Be approved by the United States Department of Labor’s Foreign Labor Certification Process.
EB-2C: National Interest Waiver – These foreign workers seek to have Foreign Labor Certification Process waived because it is in the national interest of the United States to do so. Unlike the other EB-2 categories, these workers do not need an employer sponsor and can self-petition for an EB-2 visa. EB-2C foreign worker must:
- Work in the United States in an area of substantial intrinsic merit
- Show that his or her proposed impact of work is national in scope
- Show that waiving the labor certification requirement would benefit the national interests of the United States
Immigrants seeking an EB-2 visa/green card under the Exceptional Ability or National Interest Waiver categories must additionally meet at least three of the following requirements:
- Receipt of nationally or internationally recognized prizes or awards for excellence
- Membership in associations in the field, which demand outstanding achievement of their members
- Published material about the immigrant’s professional or major trade publications or other major media
- Being asked to judge the work of others, either individually or on a panel
- Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
- Authorship of scholarly articles in professional or major trade publications or other major media
- Work that has been displayed at artistic exhibitions or showcases
- Performance of a leading or critical role in distinguished organizations
- Commanding a high salary or other significantly high remuneration in relation to others in the field
- Commercial successes in the performing arts
The yearly quota or cap of EB-2 visas issued each year is 40,000 visas (subject further to per-country limits).
Generally, as a recipient of an EB-2 Work Visa the alien may:
- May reside permanently (with a green card) in the United States.
- May be employed in the United States
- May eventually Naturalize to become a United States citizen
- Can travel freely in and out of the United States
- Can apply for dependent visas for alien’s spouse and unmarried children under 21 years to come to the United States on a permanent resident status (green card)
Employment Third Preference (EB-3)
The EB-3 visa (category/preference) is an immigrant visa which allows foreign nationals who are either professionals with a bachelor’s degree, skilled workers, or “other” workers to obtain permanent residency in the United States.
Within the EB-3 category/preference there are three sub-groups:
- EB-3A: Professionals with a bachelor’s degree for positions requiring at least a bachelor’s degree.
- EB-3B: Skilled workers for positions that require at least two years of experience.
- EB-3C: “Other” workers for positions that require less than two years of experience.
EB-3A: Professionals foreign workers must:
- Demonstrate that he or she has a United States baccalaureate degree or its foreign degree equivalent and that a baccalaureate degree is a normal requirement for entry into the occupation
- That education and experience may not be substituted for a baccalaureate degree
- Be approved by the United States Department of Labor’s Foreign Labor Certification Process.
EB-3B: Skilled workers must:
- Demonstrate that he or she has at least two years of job experience or training
- Be approved by the United States Department of Labor’s Foreign Labor Certification Process.
EB-3C: Unskilled Workers (“Other” Workers) must:
- Demonstrate that he or she is capable of performing unskilled labor (requiring less than 2 years training or experience) that is not of a temporary or seasonal nature
- Be approved by the United States Department of Labor’s Foreign Labor Certification Process.
The yearly quota or cap of EB-3 visas issued each year is 40,000 visas (subject further to per-country limits).
Generally, as a recipient of an EB-3 Work Visa the alien may:
- May reside permanently (with a green card) in the United States.
- May be employed in the United States
- May eventually Naturalize to become a United States citizen
- Can travel freely in and out of the United States
- Can apply for dependent visas for alien’s spouse and unmarried children under 21 years to come to the United States on a permanent resident status (green card)
Employment Fourth Preference (EB-4)
The EB-4 visas are usually allocated to special immigrant religious workers. However, the category can cover a broad range of other applicants. These occupations include:
- Broadcasters
- Iraqi and Afghan translators
- Iraqis who have provided aid to the United States
- Employees of International Organizations
- Certain Physicians
- Current and retired employees of NATO-6
EB-4: Religious Workers must demonstrate:
- That he or she has been a worker for the religious denomination for a minimum of two years AND
- That he or she has taken vows and devoted him or herself to specific religious tradition AND
- The he or she is priest or minister of religious denomination OR
- That he or she is a professional or nonprofessional in a religious occupation. (This also includes religious vocation that is a calling/devotion to a religious lifestyle.)
- This also includes religious vocation that is a calling/devotion to a religious lifestyle.)
EB-4: Other Categories – The requirements differ for each EB-4 application due to the amount of eligible applicants, please contact Shestopalko Law for your individualized help.
The yearly quota or cap of EB-4 visas issued each year is 10,000 visas (subject further to per-country limits).
Generally, as a recipient of an EB-4 Work Visa the alien may:
- May reside permanently (with a green card) in the United States.
- May be employed in the United States
- May eventually Naturalize to become a United States citizen
- Can travel freely in and out of the United States
- Can apply for dependent visas for alien’s spouse and unmarried children under 21 years to come to the United States on a permanent resident status (green card)
Employment Fifth Preference (EB-5)
The EB-5 program was established by the United States Congress in 1990 to facilitate increased investment in the United States economy. The EB-5 visa is a way to get a green card and permanent residency through investment. The investment allows the investor to permanently live and work in the United States with their spouse and unmarried children under the age of 21.
The yearly quota or cap of EB-5 visas issued each year is 10,000 visas (subject further to per-country limits).
For more detailed information please visit our Investor Immigration Page.
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Disclaimer: This article discusses general legal issues, but it does not constitute legal advice. No one should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction. Shestopalko Law expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.