Employment Based Visas

/Employment Based Visas
Employment Based Visas2018-10-25T14:03:08+00:00

Employment Visas or Work Visas in the United States

United States immigration law provides several pathways for foreign nationals to gain entry to the US and work here either on a temporary or permanent basis. Obtaining employment visas or work visas in the United States can be a complicated process, especially for employers. It isn’t a picnic for immigrants who want to work in the US either.

If you are an employer and need to hire a foreign worker or you are an immigrant who wishes to work legally in the US, you should contact our an experienced Blacksburg immigration attorney for assistance. Immigration attorney Jeffrey Van Doren helps employers and employee alike solve immigration problems. He has the experience to guide you through the rules and regulatory hurdles that often defeat people who try to go it alone. Call us today to schedule a consultation or use the form on this page to ask a question or request additional information about employment visas

Temporary Employment Visa

Most temporary worker visas require that the prospective employer or their agent file an employment immigration petition on behalf of the worker. The immigration petition must be approved by the U.S. Citizenship and Immigration Services (USCIS) in the United States before a work visa is granted.

Temporary Employment-Based Visa Classifications

There are many different temporary employment-based visa classifications. Temporary employment-based visa classifications allow employers to hire and petition for foreign nationals for specific jobs for limited periods. Most temporary workers must work for the employer that petitioned for them and do not have the option to change jobs. In most cases, they must leave the United States if their status expires or if their employment is terminated.

The visa classifications vary in terms of their eligibility requirements, duration, whether they permit workers to bring dependents, and other factors. Below are several of the most common temporary employment-based visa classifications.

H-1BH-2AH-2BL-1A & L-1B 
DescriptionSpecialty OccupationSeasonal agricultural workers“Seasonal” non-agricultural temporary workers. Intra-company transferees 
EligibilityFor skilled, educated individuals employed in specialized occupations. You need to have a bachelor’s or higher degree (or an equivalent degree) in the specific specialty for which you seek employment. For foreign agricultural workers to work in the United States on a seasonal or temporary basis, provided that there is a shortage of domestic workers.For foreign workers in non-agricultural fields to work in the United States, given that there is an insufficient number of domestic laborers to fill the position. Examples are jobs at resorts and amusement parks.Must be at the managerial or executive level, or have specialized knowledge and be assigned to a position within the U.S. company at either of these levels. Must have worked in a managerial/executive position for the related company abroad for at least 1 year in the 3 years prior to L-1 entry.Canadian or Mexican citizens working in one of 62 occupations listed in NAFTA. Must meet education/licensure requirements for occupational classification.
DurationInitially admitted for a period of up to three years; may be extended for up to six years total.

 

Initially admitted for a period of approved employment; may be renewed for qualifying employment in increments of one year each for a maximum stay of three years.Initially admitted for a period of up to one year; may be renewed twice for a total of up to three years.Initially admitted for a period of up to three years; may be extended for up to five (L-1B) or seven (L-1A) years.Initially admitted for a period of 3 years; may be extended for additional 3-year terms.
Employer requirementsEmployers must prove that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.  Employers must comply with wage requirements.
They are required to file a labor condition application with the Department of Labor concerning the terms and conditions of its contract of employment with you.
Employers must comply with wage, housing, transportation, and other requirements.
A U.S. employer (or an association of U.S. agricultural producers named as a joint employer) must file a Form I-129, Petition for Nonimmigrant Worker, on your behalf.
Employers are required to obtain a Department of Labor certification confirming that there are no qualified U.S. workers for the type of employment on which your petition is based.

Employers must comply with wage, housing, transportation, and other requirements.

 

Your U.S. company or affiliate must have received an approved petition from USCIS, either on a “blanket” or individual basis.TN worker must be on U.S. payroll. Self-employment is not permitted.
May the foreign workers bring their spouses and children under 21?Yes, spouses and children under 21 may enter on an H-4 visa, and certain spouses are allowed to work.Yes, spouses and children under 21 may enter on an H-4 visa but may not work.Yes, spouses and children under 21 may enter on an H-4 visa but may not work.Yes, spouses and children under 21 may enter on an L-2 visa, and spouses are allowed to work. Yes, spouses and children under 21 may enter on TD visa but may not work.


Employers must pay filing fees and may need to pay additional fees in order to petition for foreign workers (see https://www.uscis.gov/forms/our-fees for a list of current fees). Processing employers’ petitions can take several months and there are many requirements the employer must fulfill prior to petitioning. Give us a call if you are considering hiring foreign workers. Our experienced Blacksburg VA immigration attorney could help you avoid costly mistakes and may be able to minimize the processing time. 

Permanent Employment-Based Immigration

There are many ways to obtain a Green Card or Lawful Permanent Residency (LPR) in the United States. Lawful permanent residency allows a foreign national to work and live lawfully and permanently in the United States. Lawful permanent residents are qualified to apply for almost any job in the US and can stay in the country even if they are unemployed. Immigrants who become lawful permanent residents through employment may apply for U.S. citizenship after five years.  

Becoming a Lawful Permanent Resident Through Employment

Becoming a lawful permanent resident through employment typically involves a three-step process:Virginia Employment Visa Attorney


Step One: Department of Labor Certification

Employers seeking to petition on behalf of foreign workers are commonly required to secure certification from the Department of Labor (DOL),  demonstrating that there are no U.S. workers available, willing, and qualified to fill the position.

Step Two: Petition for the Foreign Worker

Employer is required to petition USCIS for the foreign worker.  Immigrants can petition for themselves under limited circumstances.  

Step Three: Adjustment of Status

A foreign worker who is already in the United States in a temporary visa classification may apply for “adjustment of status” to lawful permanent resident upon the approval of the employer’s petition, if there is a visa number available. There is an annual cap set for each preference category and nationality. If the worker is outside of the US, they may apply for an immigrant visa at the US Embassy or Consulate in their home country.

Permanent Employment-Based Visa Preference Categories

Employment-based visas are subject to preference and annual limits based on the preference category and nationality of the worker.

PriorityPreference CategoryEligibility Requirements
FirstPriority Workers“Persons of extraordinary ability” in the arts, science, education, business, or athletics; outstanding professors and researchers; multinational managers and executives.
SecondProfessionals with Advanced Degrees or Exceptional AbilityMembers of the professions holding advanced degrees, or persons of exceptional abilities in the arts, science, or business.
ThirdSkilled Workers, Professionals, and Unskilled WorkersSkilled workers with at least two years of training or experience, professionals with college degrees, or “other” workers for unskilled labor that is not temporary or seasonal.
FourthCertain Special ImmigrantsCertain “special immigrants” including religious workers, employees of U.S. foreign service posts, translators, former U.S. government employees, and other classes of noncitizens.
FifthImmigrant InvestorsPersons who will invest $500,000 to $1 million in a job-creating enterprise that employs at least 10 full-time U.S. workers.

Generally, employment-based preferences are current, meaning there isn’t much of a wait before a visa number is available. However, certain countries like China, Mexico, and the Philipines can have significant waits. (see https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html for the Visa Bulletin that shows current visa number availability).

Contact Our Immigration Law Firm

To ensure your employment-based immigration petition is handled properly, contact us. Our experienced Roanoke immigration lawyer can get you through the process as fast as possible.