Immigration Law > Employment-Based

B VISAS

B-1 Temporary visitor for business

The B-1 visitor allows an individual to come to the U.S. for a short period of time for purposes that include the following:

• engaging in meetings and consultations with U.S. business associates
• attending non-productive training of benefit to the overseas company
• attending professional conferences or meetings

A B-1 visitor is not authorized to perform productive work in the U.S. A B-1 visitor must maintain foreign residence abroad to which the B-1 visitor intends to return at the end of the authorized period of stay.

• B-2 Temporary visitor for pleasure

The B-2 visitor allows an individual to come to the U.S. for a short period of time for pleasure including tourism.  Any B-2 visitor otherwise admissible will be admitted for a minimum of six months regardless of the amount of time requested.  A B-2 visitor is not authorized to work under this status, but may be able to change to a work authorized status in some cases.

• E-1 treaty trader

The E-1 treaty trader visa allows an individual to come to the U.S. for the purpose of furthering substantial trade that is international in scope. The trade must be primarily between the United States and the treaty country where the person holds citizenship.

In order for a business to qualify to utilize E-1 visas, the company must demonstrate that the U.S. business has created substantial trade between the U.S. and the treaty country. Trade is not limited to goods and services and must be principally with the treaty country. This means that more than 50% of the total volume of international trade done by the U.S. business must be between the U.S. and the treaty country. If the U.S. entity is a branch office, then the foreign business must have more than 50% of its trade with the U.S.

At least 50% of the U.S. entity must be owned by non-U.S. resident nationals of the treaty country. If the company is publicly traded, the firm's nationality is considered to be that of the country in which the firm's stock is listed and traded.

• E-2 treaty investor status

The E-2 treaty investor visa allows an individual to come to the U.S. for the purpose of furthering a substantial investment in a U.S. enterprise made by individuals or businesses that are citizens of a treaty country.

In order for a business to qualify to utilize E-2 visas, the company must demonstrate that a substantial investment in the U.S. business has been made by individuals or companies that are citizens of the treaty country. In order to be considered a substantial investment, the funds must be "at risk". Whether the actual amount invested is substantial depends on the type of business and is weighed based upon a variety of factors. In addition, the investment must not be "marginal" (not made solely for the purpose of earning a living).

Similar to the E-1, at least 50% of the U.S. entity must be owned by nationals of the treaty country in order to qualify to utilize E-2 visas.

• H-1B Specialty Occupations, DOD workers, fashion models

The H-1B classification applies to job candidates in a "specialty occupation." The USCIS (U.S. Citizenship and Immigration Services, part of the Department of Homeland Security) considers specialty occupations to be those requiring the theoretical and practical application of a body of highly specialized knowledge. Typically this will entail completion of a specific course of higher education. For certain individuals with specialized skills and considerable work experience, equivalency evaluations can be obtained to meet the educational requirements.

Authorization for H-1B employment is specific to the petitioning company. Additionally, the authorization extends only to the specific occupation named in the H-1B petition. The status cannot be transferred between employers without the new company first filing a petition with USCIS.

At the time of filing, employers are responsible for paying the substantial filing fees for the H-1B classification, including a one time Fraud Detection and Prevention fee ($500), and two time H-1B Education and Training Fee ($1,500).  Certain educational institutions and nonprofit or government research organizations are exempt from the Education and Training Fee, and employers with less than 26 full-time employees pay one-half of the Education and Training Fee ($750).

New H-1B visas are subject to annual limits per fiscal year. Currently the annual limit is 65,000 per year with an additional 20,000 available to H-1B applicants holding U.S. advanced degrees. After the limit is reached, a candidate must wait until at least the beginning of the USCIS' fiscal year (October 1) to obtain H-1B status and start work.  Due to the cap, employers often need to accelerate their H-1B process, to file as early as allowed (April 1) for the next fiscal year.  Certain educational institutions and nonprofit or government research organizations are exempt from the cap.  Special cap number allocations are also available to H-1B nonimmigrants who are nationals of Chile or Singapore pursuant to special Free Trade Agreements, although the H-1B duration is limited to only one year (renewable).

H-1B petitions may be approved for up to three years, and can be extended for up to a total of 6 years maximum stay, regardless of the number of employers. Ordinarily, after 6 years of H-1B status, the candidate must usually reside outside of the U.S. for a full year before new eligibility arises. However, in certain limited circumstances, H-1B employees who have started a green-card process may be eligible to extend their status beyond six years, in one-year increments. The employee may be eligible for extension beyond six years if either an application for labor certification or an immigrant visa petition was filed on his or her behalf at least 365 days prior to reaching the 6-year H-1B limit. NOTE: A labor certification is different from a labor condition application ("LCA"); it is often a prerequisite for an I-140 immigrant petition filed in connection with a green card.

Spouses and children of H-1B workers are eligible for dependent visas in the H-4 classification. H-4 spouses and children may not work.

• H-2A Temporary Agricultural Worker

The H-2A nonimmigrant program permits employers to hire foreign national workers to come to the U.S. and perform temporary agricultural work.  There is no annual limit to the number of foreign workers who may receive H-2A status during each fiscal year.  There are many specific regulations outlining the requirements for employers to provide transportation, housing and meals to H-2A employees.

Proving a temporary need is an essential element of H-2A processing. The need for services must be temporary in nature for one year or less. Practically, most employers limit their requests to periods of 10 months or less because DOL has taken the position that requests for services that will last for more than 10 months receive additional scrutiny. The employer's need cannot be ongoing or continuous.

• H-2B Temporary worker: skilled and unskilled

The H-2B nonimmigrant program is similar to the H-2A program in many respects.  It permits employers to hire foreign national workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent. There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status during each US Citizenship and Immigration Services (USCIS) fiscal year (October through September), with one half of the numbers (33,000) reserved for the first and last six months of this fiscal year. The process for obtaining H-2B certification from the US Department of Labor (DOL) is similar to, but less extensive and time consuming, than permanent labor certification for a green card. After DOL certification is obtained the H-2B petition identifying the intended workers needs to be filed and approved by the USCIS.

As with H-2A, proving a temporary need is an essential element of H-2B processing. The employer's need cannot be ongoing or continuous.

"One-time Occurrence" relates a temporary need for workers that will not recur again in the foreseeable future.
"Seasonal" temporary needs are generally connected to the changing seasons and predictable in nature.
"Peak Load" temporary needs relate to a short term demand to supplement an employer's permanent staff already employed to perform the services.
"Intermittent" temporary needs relate to occasional or intermittent situations requiring temporary workers, and no permanent workers are generally employed.

Specific documentation that would serve to prove a temporary need would depend on the industry. For example, in the hospitality industry occupancy reports often are used to show a seasonal and/or peak load need.

• H-4 Spouse or child of H-1, H-2, H-3

The spouse and children (under 21) of the H visa holder will be eligible for derivative visas to accompany the employee on the U.S. assignment in the H-4 classification. The H-4 classification does not allow for U.S. employment.

• L-1A Executive, managerial and L-1B Specialized Knowledge

The L classification applies to intracompany transferees who, within the three preceding years, have been employed outside of the U.S. continuously for at least one year, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial, executive, or specialized knowledge capacity. The L-1 classification requires clear documentation of the qualifying relationship of ownership and control between the U.S. and foreign office. L-1 candidates abroad who wish to meet the one-year requirement need be aware that U.S. visits are subtracted from the one-year accumulation. If the candidate will require L-1 status to perform work requiring "specialized knowledge" of the company's advanced processes and procedures, the L-1B classification will attach. Managerial and executive candidates will be accorded the L-1A classification.

Initial L-1 visa status may generally be approved for up to three years, and can be extended for up to a total of 7 years maximum stay for an L-1A (manager or executive) or 5 years for an L-1B (specialized knowledge). After the end of the maximum L-1 period of stay in the U.S., the candidate must reside outside of the U.S. for a full year before eligibility for L -1 (or H-1B) status may resume. Spouses and children of L-1 workers are eligible for dependent visas in the L-2 classification. L-2 spouses can apply for employment authorization.

Employers are responsible for paying a one time Fraud Detection and Prevention fee ($500) for each initial L-1 application.

• L-2 Spouse or child of L-1

The spouse and children (under 21) of the L visa holder will be eligible for derivative visas to accompany the employee on the U.S. assignment in the L-2 classification. The L-2 classification allows for U.S. employment for the spouse, but not the children.

• O-1 Extraordinary ability in Sciences, Arts, Education, Business,  or Athletics

The O-1 visa classification is intended for individuals with extraordinary ability in the sciences, arts, education, business or athletics. To qualify, an applicant must generally have extraordinary ability demonstrated by sustained national or international acclaim. Artists and entertainers in the television and motion picture industries are treated somewhat differently, and must demonstrate a record of extraordinary achievement. These objective O-1 requirements mean that applicants must present extensive documentation that demonstrates that they have received recognition of their extraordinary abilities and/or achievements from qualified, objective sources in their occupational field.

Derivative Family Members

The spouse and children (under 21) of the O-1 visa holder will be eligible for derivative visas to accompany the employee on the U.S. assignment in the O-3 classification. The O-3 classification does not allow for U.S. employment.

O-2 Accompanying Employees

This category is restricted to foreign nationals seeking to accompany O-1 employees in the arts, motion picture and television productions, and athletics. O-2 foreign nationals cannot work separate and apart from the O-1 prospective employee in question and must be named in the O-1 petition. Individuals seeking admission to accompany an O-1 employee must meet the following criteria: (1) they must enter for the purpose of assisting in the O-1's performance; (2) they must be an integral part of the actual performance; (3) they must have critical skills and experience with the O-1 employee which are not of a general nature and which are not possessed by a U.S. worker; and (4) they must have a foreign residence they do not intend to abandon. More specific requirements apply to O-2 foreign nationals involved in motion picture and television productions.

R VISAS

• R-1 religious worker

The R-1 Visa enables religious workers to temporarily enter the United States. A religious vocation is defined as a calling to religious life, shown by a demonstration of a lifelong commitment; for instance, taking vows. Nuns, monks, and religious brothers and sisters are examples of religious workers. A religious occupation is defined as a continual engagement in an activity related to a traditional religious function. This definition includes liturgical workers, religious instructors or cantors, catechists, workers in religious hospitals, missionaries, religious translators and religious broadcasters. However, it doesn't include janitors, maintenance workers, clerks, fund raisers or solicitors of donations. Your spouse and/or unmarried children under 21 years of age may be granted derivative status to enter the U.S. They are not authorized to work while in the U.S., but may attend school.

• TN Trade visas for Canadians and Mexicans

Canadian citizens enjoy certain special U.S. immigration privileges pursuant to international treaties between the U.S. and Canadian governments. Among these privileges is a special nonimmigrant visa category exclusively for Canadian citizens, the TN-1 ("TN" stands for "Treaty/NAFTA"). The TN-1 nonimmigrant visa classification was created by the 1992 North American Free Trade Agreement ("NAFTA"), and applies exclusively to Canadian citizens temporarily entering the United States to engage in business activities at a professional level. Unlike the more common H-1B visa classification, the TN-1 category is only open to Canadian citizens who shall work in certain pre-designated professions.

The great advantage of the TN-1 process is the relative speed with which this visa status can be acquired. Most TN-1 visa applications may be made "on the spot" at land-, sea-, or airports of entry. Typically, Canadian citizens flying to the United States from Canada will apply for their TN-1 visa applications at designated "Pre-Flight Inspection stations" - located within major Canadian international airports - before leaving Canada. Many U.S. employers hiring Canadian citizens find that they can bring their candidates "on board" (and on U.S. payroll) within a matter of days or weeks, rather than the months-long wait that the H-1B or L-1 visa application process usually requires.

Another advantage of the TN-1 category is that, unlike the H-1B visa category, the TN-1 has no annual limits per fiscal year. In theory, an unlimited number of TN-1 visas can be issued each year. Further, unlike the H-1B or L-1 nonimmigrant visa categories, there is no set "cap" on the amount of time a Canadian citizen may remain in the United States in TN-1 status.

NOTE REGARDING ACADEMIC DEGREES: Most, but not all, TN-1 categories require a baccalaureate degree as the qualifying academic credential. A few categories require an advanced degree (e.g., Librarian). When a baccalaureate degree is required for a particular professional category (e.g., Engineer), the DHS examining officer will typically want to see that the TN-1 applicant possesses a degree from a North American (i.e., Canada, the United States, or Mexico) academic institution. Should a TN applicant possess a degree from an academic institution located outside North America, an evaluation of the foreign degree from a "reliable credentials evaluation service" must first be obtained.

Permanent Residence through employment

 There are several ways of applying for US permanent residence (or "green card" status). The most common employment-based method is through labor certification. Labor certification is an official government finding that willing and qualified U.S. workers are not available to fill the position in question and that employment of a foreign national will not adversely affect the wages and working conditions of similarly situated US workers. As of March 28, 2005, all labor certification applications must be filed in accordance with the Department of Labor's (DOL's) newly issued PERM regulation.  

PERM

Under PERM labor certification, the DOL is wholly responsible for the review and adjudication of labor certification applications.  Preparation of the labor certification application package, even under PERM, will remain complex and will take more preparation time than the typical nonimmigrant (H or L) petition. When complete, the labor certification application will be submitted electronically to a national DOL processing center. The date of submission of the online form will serve as the priority date for the entire permanent residency process (i.e., one's place in the green card queue).

The DOL will carefully review the labor certification application for completeness and adequacy. The DOL may perform an audit of the application and request that documentation of the application be submitted. The online system may randomly select cases for audit as well. When review is complete, the DOL will either issue its approval or other decision based on the merits of the application. Approved applications will be returned to attorneys handling the case, and both the employer and the employee will be required to sign the approved application before it can be used in the second stage of the process.

• EB-3 skilled or professional worker – position requires a Bachelor’s degree or at least 2 years of training/education
• EB-2 professional with advanced degree – position requires at least a Master’s degree or equivalent (Bachelor’s degree plus 5 years progressive experience)

    Exempted from PERM

• EB-1 priority worker – persons of extraordinary ability, outstanding professors and researcher, or multinational executives and managers.
• EB-4 Special Immigrants, religious workers

• EB-5 Employment Creation Visa

Form I-140 – Immigrant Petition for Alien Worker

Once the labor certification application is certified, it provides the basis for the company to move to the second stage of the process and file an I-140 immigrant petition with the US Citizenship and Immigration Service (CIS). Wincorn prepares the I-140 and supporting documentation for the company. CIS determines the "immigrant category" of the case and adjudicates the I-140 petition; the processing times vary depending on the service center jurisdiction.

I-485 Application for Adjustment of Status to Permanent Residence

The I-140 petition provides the basis for the employee's I-485 application for adjustment of status (AOS) to permanent residence., The employee, along with his/her dependents, can file his or her I-485 application with the I-140 or after the I-140 is filed, as long as his or her "priority date" is current, "Priority dates" are the queuing system for cases under an immigrant quota. At present, certain foreign nationals petitioning under employment-based categories are required to wait for their priority dates to become current in order to submit their AOS applications. The US Department of State issues a monthly visa bulletin that indicates which countries and categories fall under these limitations, which can be found at http://travel.state.gov/visa/frvi_bulletin.html.

A 'C' on the charts in the middle of the bulletin means that the category is "current" and there is no need for applicants born in that country to wait to file an AOS application. If a date is indicated, a person born in that country (with certain exceptions) must wait to file the AOS application if his or her priority date is not current (i.e. his or her labor certification was filed after that date).

Along with the AOS application, Wincorn will also file requests for travel permission (advance parole) and employment authorization for the employee and dependents. Once the advance parole application is approved, the employee and dependents will be able to travel outside the United States even if they do not have valid nonimmigrant status. Once the employment authorization document (EAD) is approved, the employee's dependents will be authorized to work in the United States. With the approval of the AOS application, the employee and dependents become U.S. permanent residents and green cards are issued to them through the mail.