Employment immigration is a vast area of immigration law. Although one can be granted an Immigrant Visa through self-sponsorship, in most instances, a foreign worker will need to be sponsored by a U.S. company. The representative of the U.S. company will have to petition on the foreign worker’s behalf before hiring the individual, whether or not the foreign national resides abroad. Also, in certain cases, permanent residence can be granted to a non-immigrant visa holder upon sponsorship by a U.S. company, pursuant to the dual intent doctrine.

 

A. Employment Immigration through Employer sponsorship

Welcome To The UsaIn most cases, a foreign worker will need to be sponsored by a U.S. company, meaning that the representative of the U.S. company will petition on the foreign worker’s behalf before hiring the individual, and obtain a Labor Certification with the Department of Labor (except in instances when the requirements of the National Interest Waiver are met).

 

1. Employment Immigration through Employer sponsorship With labor certification

Specific Visa Categories requirements have to be met in order for an individual to be granted a green card (or Immigrant Visa) according to the criteria mentioned in each of the categories below.
In order to be granted the Immigrant Visa considered, the applicant must meet those specific requirements in addition to the following common requirements: 

  • Full-time job offer via a company located in the U.S.
  • Obtain a Labor Certification: the U.S. companies who are seeking to hire foreign employees for an Immigrant Visa will have to file for and obtain a Labor Certification (LC) with the Department of Labor (DOL). To complete this process, the company has to demonstrate that it has not found U.S citizens, green card holders or other eligible individuals who met the requirements for the foreseen position.
  • No prior criminal records that would make him or her ineligible for an immigrant visa, or has no prior records of fraud, misrepresentation, and other bad acts. Note that in that instance, the person may require a waiver of grounds of inadmissibility before obtaining the immigrant visa.
  • A visa is available in the specific category.

The Visa Availability:
For the attribution of those Immigrant Visas for Workers, the Department of State relies on a preference category system that determines whether a visa is available for the considered worker. This preference category system functions by priority date, i.e. the date that the labor certification or petition is filed (whichever is earlier) on behalf of the worker. The Department of State visa bulletin , published on a monthly basis, allocates immigrant visas by priority date, according to each preference category and by regions which are broken into five (Mexico, India, China, Philippines and all other chargeability areas).

Employment immigrationThe Immigrant Visas through employment sponsorship are the following:

EB-2: Advanced Degree

The EB-2 Employment based Second Preference Visa is granted to individuals who have a U.S. Master’s or doctoral degree or its foreign equivalent, or have a U.S. Bachelor’s degree (or its foreign equivalent) followed by at least five years of progressive experience in the field.

EB-2: Exceptional ability

To qualify for the EB-2 Second preference Visa with Exceptional Ability classification, one must show exceptional ability in the sciences, arts, or business.
The initial evidence must include at least 3 of the following requirements:

  • A degree, diploma, certificate or similar award from a college, university, school or other institution, relating to the field of exceptional ability
  • At least ten years of full-time experience in the considered field
  • If required, have a license or certification to practice in the considered profession or occupation
  • Command a high salary or other remuneration for one’s services, which demonstrates one’s exceptional ability
  • Be a member of professional associations
  • Recognition for achievements and significant contributions to one’s industry or field
EB-3: Professional Worker

To qualify for the EB-3 Third preference Visa for Professional Workers, one must show that the considered job requires at least a U.S. baccalaureate degree or a foreign equivalent and is a member of the professions.

EB-3: Skilled worker

To qualify for the EB-3 Third Preference Visa for Skilled Workers, one has to demonstrate at least 2 years of job experience or training in the considered field.

EB-3: Unskilled worker

To qualify for the EB-3 Third Preference Visa for Unskilled Workers (or other workers), one has to demonstrate that he or she will be performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature.

EB-4: Special categories of Job

The following special immigrants are eligible for the Fourth Category preference EB-4 Visa:

  • Armed Forces Member
  • Afghan/Iraqi Translator
  • Broadcaster
  • International Organization Employee
  • Iraqi or Afghan who assisted the U.S. Government
  • NATO-6 retired employees or immediate relatives of NATO-6 Deceased employees
  • Panama Canal Zone Employee
  • Physician (National Interest Waiver)
  • Religious workers

 

2. Employment Immigration through Employer sponsorship Without labor certification

 EB-1- Executive or Manager

immigration florida orlando green card citizenship lawyerTo meet the requirement for First Preference EB-1 Immigrant Visa for Executive and Manager, one must have been employed outside the United States by a firm or corporation petitioning on one’s behalf for at least 1 year in the 3 years preceding the petition, and be seeking to enter the United States to continue service to that firm or organization.

EB-1: Outstanding Professor or Researcher

The EB-1 Employment based First Preference Visa for Outstanding Professor or Researcher requires international recognition for one’s outstanding achievements in a particular academic field.
The Applicant must have at least 3 years experience in teaching or research in that academic area, and must be entering the United States in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education.

EB-2: Exceptional Ability with National Interest Waiver

The EB-2 Employment based Second Preference Visa is granted to individuals who have a U.S. Master’s or doctoral degree or its foreign equivalent, or have a U.S. Bachelor’s degree (or its foreign equivalent) followed by at least five years of progressive experience in the field.

Along with the EB-2 Advance Degree immigrant worker petition, one can ask for National Interest Waiver (NIW) in order for the company to receive a waiver of the Labor Certification requirement upon meeting the following:

  • Show that one plans on working in the U.S. in an area of substantial intrinsic merit
  • Show that the proposed impact of one’s work is national in scope
  • Show that waiving the LC requirement would benefit the national interest of the U.S.

B. Employment Immigration through Self-Sponsorship

immigration orlando florida lawyer employment immigrationThe First-preference EB-1 Visa is an Immigrant Visa granted to professionals with Extraordinary Abilities without sponsorship from a U.S. employer.
This classification is for people who are recognized as being one of the best in their field: the individuals who are able to demonstrate Extraordinary Ability in the sciences, arts, education, business, or athletics can obtain an EB-1 Immigrant Visa, which is equivalent to the green card.


To meet the Extraordinary Ability requirement, the Petitioner will have to demonstrate his or her achievement in his or her specialty through extensive documentation and proofs of recognition.

One will have to demonstrate that he or she has received a major internationally recognized award, similar to a Nobel Prize or that he or she meets at least three of the following requirements:

  • Be awarded with any lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor 
  • Be a member of associations that require outstanding achievements of their members as judged by recognized national or international experts
  • Material published in professional or major trade publications or major media about the Petitioner which relates to his or her work in the field
  • Participation on a panel or individually as a judge of the work of others in the same or in an allied field of specialization
  • Original scientific, scholarly or business contributions that are of major significance
  • Author scholarly articles in professional journals or other major media
  • Display of the Petitioner’s work at artistic exhibitions or showcases
  • Played a leading or critical role for an organization with a distinguished reputation
  • High salary or other remuneration for one’s services in comparison to others in one’s field
  • Commercial successes in the performing arts

C. Petition for a Non-Immigrant Visa holder: the Concept of Dual Intent

In some cases, the lawful permanent residence, i.e. green card, can be granted even if the foreign national holds a non-immigrant status.

The dual intent doctrine is a legal U.S. immigration concept pursuant to which certain non-immigrant visas holders are allowed to pursue permanent residence, i.e. green card. The dual intent doctrine is an exception to the general ground of inadmissibility for non-immigrant visas, according to which a visa can be terminated or refused if the foreign applicant is proven to have immigrant intent upon entering the U.S.

Additionally, this concept allows a foreign national who holds a non-immigrant visa status to maintain such status while applying for an immigrant visas or green card. The following categories of non-immigrant visas allow for dual intent:

  • H-1B Persons in Specialty Occupation
  • L Intracompany Transferees
  • O-1 Individuals with Extraordinary Ability or Achievement
  • P-1 Individual or Team Athletes, or Members of an Entertainment group

Other visas allow somewhat for dual intent such as the treaty trader or investor visa (E1/E2). Regulations provide that an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition. However, E visa applicants must prove that they have an intention to depart the United States upon termination of their E status, and not stay in the United States to adjust status or otherwise remain in the United States regardless of legality of status.

D. Employment Immigration Procedure

Two distinct processes can be used by the U.S. company seeking to hire a foreign worker under one of the Employment immigration category listed above: the Consular processing, and the Adjustment of Status.

If the future employee resides outside the US when the petition is filed, this person will go through the Consular processing, which consists of following two steps:

The first step is the employer or self-petitioner filing of a Petition for Alien Worker with United States Citizenship and Immigration Services (USCIS), which takes several months to get approved unless the premium processing expedited process is selected. In the case of an employer petition, during this process, the company sponsoring must show that it has the ability to pay the prevailing wage determined during the labor certification process, as well as the employee’s qualifications for the job offered. Once approved, the file will be transferred to the National Visa Center (NVC) for further processing.

The second step will consist of providing all necessary documentation and fees to the NVC which then forwards the file to the appropriate U.S. Consulate for an immigrant visa interview.

If the future employee is already in the US, the employee can sometimes be eligible to file for an Adjustment of Status through the already approved or filed Immigrant petition for Alien Worker, depending on visa availability. In this case, once the Petition for Alien Worker is approved and a visa number is available, one can apply to Register Permanent Residence or Adjust Status, to become a permanent resident. The adjustment of status for foreign worker will not be granted to individuals who are not maintaining legal status unless they fall under the exception allowed under section 245(k) of the Immigration and Nationality Act (less than 6 months of unlawful presence).