Employment Based Immigration

Benach Collopy attorneys have experience in all types of employment-based visas, assisting individuals, corporations, and non-profits navigate the alphabet soup of temporary visas and obtain permanent residence in the U.S. for themselves or talented employees. U.S. immigration law provides about 140,000 immigrant visas every year for employment-based immigration. These visas are divided into five categories, also known as preferences, each of which has its own standards.

  1. First preference (“EB-1”): individuals of extraordinary ability, multinational managers, outstanding professors, and researchers.
  2. Second preference (“EB-2”): advanced degree professionals (either with labor certification or where the requirement of a labor certification may be waived in the national interest).
  3. Third preference (“EB-3”): professionals (those holding positions that require at least a bachelor’s degree), skilled workers (those holding positions that require at least two years of experience), and “other” workers (those who work in positions that do not require a bachelor’s degree or two years of work experience)
  4. Fourth preference: not a true employment based category, includes a diverse array of immigrant visas, but only a few that involve employment
  5. Fifth preference: (“EB-5”): investors whose investment spurs job creation in the U.S.

These categories can basically be divided into two distinct groups: those positions that require labor certification and those that do not. A labor certification is a determination made by the U.S. Department of Labor (“DOL”) that there are no qualified U.S. workers available for the position. It is a prerequisite to filing an immigrant petition for all third preference cases and for the majority of second preference cases. To obtain a labor certification, an employer must describe the position and its requirements with specificity, conduct a bona fide recruitment for the position, and submit an application through the PERM process to the DOL, which can approve, summarily deny or audit the application, wherein the Department requests additional documentation. Once satisfied, the DOL will issue the labor certification and the employer may file an immigrant petition on behalf of the employee. The employer must provide proof that it has the ability to pay the proffered wage, which was set by the DOL in the labor certification, and that the foreign national employee has the credentials to fill the position. Once the immigrant petition is approved and the visa number is current, the employee may seek adjustment of status or an immigrant visa. Backlogs in visa numbers are common throughout the third preference and in the second preference for individuals born in India or China. The backlog shifts every month and can be monitored at the U.S. State Department’s Visa Bulletin.

You can read about immigration procedures for those who do not require labor certification, such as individuals of extraordinary ability, here.

In addition to managing the employment-based residence process, Benach Collopy has a wealth of experience in obtaining temporary visas for clients working in all types of positions and for all types of employers. The most common visas are:

  • H-1B. This visa is available to individual coming to work for a U.S. employer in a “specialty occupation”, that is, one that requires at least a bachelor’s degree. The individual employee must possess the degree or its equivalent in experience and the position must also require the degree. The employer must demonstrate that it, in fact, has such a requirement and must also agree to pay the prevailing wage and comply with certain workplace regulations. H-1Bs are subject to a quota that is routinely met when they become available the first week of April. Planning for a new H-1B should begin early in the year.
  • L. This visa is for intra company transferees. For example, company A wants to send an employee from Mexico City to work for its affiliate in Boston. The L visa requires the two companies to have a legal relationship such as parent, subsidiary, or affiliate. If the employee’s duties are managerial in nature, the employer may seek an L-1A visa, whereas if the duties involve the use of “specialized knowledge,” an L-1B visa may be sought.
  • O. This visa is for individuals of extraordinary ability in the arts, sciences, athletics, or other discipline. Individuals seeking this visa must be able to show that they are acclaimed and have reached the top of their field. Awards, press, peer reviews, presentations, and demonstrations of the individual’s work are generally required.
  • TN. These visas are only available to Canadians or Mexicans and are based on the North American Free Trade Agreement (NAFTA). The law provides for expedited processing for TN visas for individuals coming to work in a series of specialized occupations which are listed here. The applicant must demonstrate that she fits within the position and has the credentials specified by the regulations. This is a good alternative to the H-1B visa for Canadians or Mexicans when there are no H visas left.
  • E. These visas are only available to nationals of countries with which the Unites States has treaties. That list is published at: Treaty Countries. The visas are available to two groups of people: (E1) those coming to engage in substantial trade between the U.S. and the treaty country; and (E2) those coming to direct the operations of an enterprise into which the applicant has invested a substantial amount of capital. These applications are often made directly to the Embassy in the applicant’s home country as opposed to petitions with the Citizenship & Immigration Service (CIS) in the U.S.
  • R. An R visa is available to a foreign worker coming to the U.S. to work in a religious capacity. A religious organization in the U.S. must sponsor the applicant and the applicant must have been a member of the religious denomination for at least two years. In addition, the work must be religious in nature (minister, Sunday school teachers) as opposed to a secular position with a religious organization (accountant).

There are many other ways to immigrate to the U.S. through employment. Benach Collopy attorneys are familiar with the full range of options and can guide you through this process.

Contact Us about Employment Based Immigration