Employment Based Visas

An employer may sponsor its employee in obtaining a green card.  It is a multi-step process which involves careful document preparation and is confined by various rules and regulations. There are a few categories for granting permanent residence to foreign nationals based on employment skills. The employment categories are EB-1, EB-2, EB-3, EB-4, and EB-5. Most technical workers fall under the first 3 categories.

To qualify for an EB-1 visa as a multinational executive or manager you must be a foreign national who:

• Possesses ‘extraordinary ability’ in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation;
• Seeks to enter the U.S. to continue work in the area of ‘extraordinary ability’; and
• Stands to substantially benefit the U.S. upon entry into the country.

To qualify for an EB-1 visa as a multinational executive or manager you must be a foreign national who:

• Has been employed for at least one year by a firm, corporation or other legal entity, or a parent, affiliate or subsidiary thereof, in the three years preceding the time of your EB-1 application; and
• Seeks to enter the U.S. in order to continue to render services to the same employer or to a parent, subsidiary or affiliate thereof in a capacity that is managerial or executive.

To qualify for this visa you must have:

• International recognition as outstanding in a specific academic field
• At least three years teaching or research in the field.  The teaching or research experience can be gained while in pursuit of an advanced degree, but only if the alien had full responsibility for the courses taught, or the research is recognized as outstanding.
• An offer of employment. There are three forms this offer can take:
• A tenure or tenure-track teaching position or a comparable research position, or
• A research position with no fixed term in a position where the employee would generally have the expectation of permanent employment, or
• A research position with a private company if the employer has at least three full-time researchers and has documented research accomplishments in the field.

To qualify of this visa you must be a foreign national who has extraordinary ability in the arts, athletics, sciences, education, or business, and is coming to the United States temporarily to perform services for a U.S. employer in his or her area of expertise. According to USCIS, “extraordinary ability” means that the foreign national has reached a level of expertise indicating that he or she is one of a small percentage who have risen to the very top of his or her field of endeavor. In addition, the position the foreign national is coming to fill must require the services of an individual of extraordinary ability. The “Arts” may also include foreign nationals in the motion picture or television industry.

The H-1B non-immigrant visa may be issued to applicants seeking temporary entry in a specialty occupation and who also possess professional skills. Visas are issued in accordance with a maximum cap of 65,000 per year, with an additional 20,000 H-1B visas available to individuals who have earned a Master’s degree or higher in the U.S. “Specialty Occupations” are positions that require at least a Bachelor’s or its equivalent in a specific field, some examples include: accounting, computer analysts, programmers, database administrators, web designers, engineers, financial analysts, scientists, architects, and lawyers. The petitions are submitted by employers based on their need for the non-immigrant employee.

The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a  specialty occupation that requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

The H-2A temporary agricultural program establishes a means for agricultural employers who meet specific regulatory requirements and anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.

Employer needs to show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The H-2B nonimmigrant visa is for temporary workers coming to the United States to fill positions that are temporary in nature. Such positions are usually linked with a specific time frame or contract. The H2B classification is also suitable for athletes or those in the performing arts who have not yet achieved international renown, and skilled workers in crafts and trades who are able to perform tasks for which no U.S. workers are available.

The H-3 visa is for a foreign national who is coming to the United States to receive training from an employer in any field other than graduate education or training. This covers a specific course of job-related training that has been planned in the United States, which may include employment incidental to the training period.

When an application is made in this category, the employer must state that the training is not available in the foreign national’s home country, and why it is necessary for the foreign national to receive training in the U.S.

The Immigration and Nationality Act provides two nonimmigrant visa categories for persons to participate in exchange visitor programs in the United States. The “J” visa is for educational and cultural exchange programs designated by the U.S. Department of State, Exchange Visitor Program and Designation Staff, and the “Q” visa is for international cultural exchange programs designated by the U.S. Citizenship and Immigration Services (USCIS).

Companies that need to transfer senior personnel from a foreign office or foreign affiliate may conveniently use the L-1 visa category.

Executives, managers or persons with specialized knowledge, who possess at least one continuous year of previous experience with a foreign company which is either organizing a US entity, branch office or joint-venture agreement, are eligible to receive L-1 visas.

The P-1A classification applies to individuals coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.

The P-1B classification applies to individuals coming to the United States temporarily to perform as a member of an entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time.

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada and Mexico. The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. Among the types of professionals who are eligible to seek admission as TN nonimmigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers.