Employment-Based Immigration

Fortunately for employers and potential employees alike, the U.S. immigration law includes a wide variety of employment-based visa categories.

Unfortunately, finding the most appropriate category and obtaining approval from the U.S. government can be a complicated task at times. In some cases, people are eligible (or could become eligible) for more than one visa category, but need help determining which petition has the greatest likelihood of success or is most likely to fit in to plans for the future.

In our role as business immigration attorneys, we do our best to help you understand all of your available options. For example, are you seeking a green card for an employee that will permanently relocate to the United States? If so, we’ll need find an immigrant category that fits for your unique circumstances. Are you only looking for a temporary option? In that case, we can help you select a non-immigrant visa program. Regardless of your needs, we counsel with you to choose the best fit, we help make sure the process is as seamless as possible.

For a non-exclusive summary of some of the most common employment-based categories, click here:

If you have questions about employment-based immigration options, contact our office today.

EMPLOYMENT BASED VISA TYPES

IMMIGRANT CATEGORIES (PERMANENT “GREEN CARD” ELIGIBLE POSITIONS)

EB-1 (Priority Workers)

This category is only available to those who have demonstrated “extraordinary ability” in the arts, science, education, business or athletics; outstanding professors and researchers; and multinational managers and executives. The U.S. government has very stringent requirements for determining what constitutes “extraordinary ability,” but for those who can meet this high burden, an EB-1 petition can be a very appealing option. Unlike most other categories, employers seeking Priority Workers are not required to complete the Labor Certification Process.

EB-2 (Professional with Advanced Degrees or Exceptional Ability):

This category is only to professionals in positions that require a Master’s Degree or higher in a particular field, or who have demonstrated exceptional ability in the arts, science or business. Although not as high a standard as the “extraordinary ability” required for an EB-1 petition, documenting exceptional requires meeting rigorous requirements to document a prospective employee’s achievements. To qualify for an EB-2 visa, the petitioning employer must first documents its efforts to find a qualified U.S. worker to fill the position through a process called Labor Certification.

EB-3 (Skilled Workers, Professionals, and Unskilled Workers)

The EB-3 is probably the most popular of the employment-based immigrant petitions because it is available to a wide variety of employees. However, just like the EB-2, to qualify for an EB-3 visa, the petitioning employer must first documents its efforts to find a qualified U.S. worker to fill the position through a process known as Labor Certification.

NON-IMMIGRANT CATEGORIES (TEMPORARY)

B-1 (Business Visitor)

Often issued as a combination B1/B2 Visitor visa, a B-1 visa allows you to enter the United States for very limited business purposes. This may include attending a conference or shareholders meeting. It generally does NOT allow you to work in the U.S. or to manage the day to day operations of your own company. Often considered a “gray area” in U.S. immigration law, if you’re no careful, it can be easy to run afoul of U.S. immigration laws while traveling on a B-1 visa. If you have questions about whether the activity you intend to engage in while in the United States is authorized while in B-1 status, you should consult an attorney.

If you have questions about the B-1 (Business Visitor) program, contact our office.

H-1B (Specialized Occupations):

For employers looking to hire specialized professionals (generally for positions requiring a bachelor’s degree or higher in a particular field), the H-1B program is a very popular option. Because this visa is so popular, and because there are a limited number of visas available each
year, most employers must submit their H-1B visa applications promptly at the beginning for April in order to be considered for one or more of the available visas. The time leading up to April 1 is commonly referred to as “cap season.” If you are interested in seeking H-1B status for yourself or for a prospective employee, it is best to contact an attorney well in advance.

In some cases, you can apply for an H-1B outside of the normal cap season. If you have questions about whether you or your employee are subject to the H-1B cap, contact one of our attorneys today.

Note: For those from certain countries (Mexico, Canada, Singapore, Chile, and Australia), there are other visas very similar to the H-1B but that are not subject to the same yearly cap. For individuals from these countries, or for employers seeking to hire professionals for these countries, you should also consider the TN, H-1B1, or E-3 programs.

If you have questions about the H-1B visa program, please contact our office.

L-1 (Intracompany Transferee):

For employers who have qualifying affiliate offices in both the United States and one or more foreign countries, it may be possible to transfer certain employees to a U.S. location. To qualify for the L-1 program, transferring employee must be a MANGER, EXECUTIVE, or person with SPECIALIZED KNOWLEDGE.

If you have questions about the L-1 visa program, contact us.

O-1 (Extraordinary Abilities):

The O visa is intended specifically for those who have demonstrated “extraordinary ability” in the fields of science, arts, education, business, athletics, motion picture, or television. Generally this includes a significant record of accomplishment, including national and/or international recognition.

R-1 (Religious Worker):

The R-1 visa is intended for temporary religious workers who are coming to the United States to work as a minister or other religious occupation.

If you have questions about the R-1 (Religious Worker) visa program, contact our office.

TN (NAFTA status for professionals from Canada or Mexico):

The TN visa program was created under the North American Free Trade Agreement (and continues under its successor the United States-Mexico-Canada Agreement or “USMCA”). While the TN program is very similar to the H-1B program in many respects. Because it is a treaty-based visa, it is only Canadian and Mexican nationals and only available to those in the professions designated under the Treaty arrangement. This list of professions, commonly referred to as “Appendix 1603.D.1” is updated from time to time under the terms of the Treaty.

If you have questions questions about the TN visa program, contact us.

J-1 (Exchange Visitor/Trainee):

The J-1 visa program is for those coming to the United States under an existing exchange program, designated by the U.S. Department of State. In some cases, these exchange programs include authorization for employment in the United States.

This program also includes a “home residency” requirement that, in many cases, requires J-1 visa holders to return to their home country for at least two years before being eligible for permanent residency or certain other U.S. visas. The home residency requirement does not apply to all J-1 visa holders. For those who are subject to the home residency requirement may also be eligible for a waiver.

For questions about the J-1 visa program, the two-year home residency requirement, or potential waivers, contact our office.

F-1 (CPT or OPT)

In some cases, students in L-1 status are eligible to seek employment authorization through either Curricular Practical Training (CPT) or Optional Practical Training (OPT). Although this work authorization can be completed while enrolled in school or after graduation, many students choose to wait until after graduation to apply for OPT. This usually provides work authorization for 12 months following graduation, during which time the graduating student is able to remain in the United States and work in the field he or she just studied in school.

Students who have studied a STEM field may be eligible for additional OPT (commonly referred to as STEM OPT), allowing them to remain and work in the United States for an additional 24 months.

If you have questions about employment options connected to F-1 status, contact us.

EAD (Employment Authorization Document or “Work Permit”)

For certain individuals whose status does not automatically qualify them for employment in the United States, there may be an opportunity to apply for a temporary Employment Authorization Document (EAD). Spouses of certain visa holders (such as L or E-2 visas) are eligible to apply for EADs. Other common scenarios that lead to EAD eligibility include: those with a pending Adjustment of Status application; DACA recipients, Asylees, etc.

If you think you may be eligible for an EAD, please contact us.