Employment-based immigration

Padilla Law assists individuals and businesses to structure and prepare petitions and applications for immigrant and nonimmigrant visas for various categories of foreign nationals eligible for residence and employment in the United States based of their education and and occupational achievements.

A. Employment-based immigrant visas

1. EB-1A - Aliens with extraordinary ability

Extraordinary ability means a level of expertise, indicating that the individual is one of those small percentages who has risen to the very top of the field of endeavor. 8 CFR § 204.5(h)(2). Such persons must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Examples include world record holder, Olympic medalist, World Cup soccer player, US Open finalist, renowned musician, filmmaker, fashion designer, inventor, scientist, Oscar winner, Grammy winner, premiere model, Miss Universe participants, cast member of award-winning shows, politician, critically acclaimed, and nationally renowned artist and elite entrepreneurs and professionals in the IT sector. Their achievements must be recognized in the field through extensive documentation. A labor certification is not required for individuals with extraordinary abilities, i.e., applicant does not need to prove to USCIS that no qualified applicants for the job he/she wants to take in the US were identified. Specific job offer is not required, but applicant must be coming to work in his/her specific field, and it must be apparent how the applicant is going to support himself/herself.

2. EB-1B – Outstanding professors and researchers

EB-1B is an immigrant visa available to outstanding members of academia upon a petition by a US university. The requirements are as follows:

Job offer must be from either a U.S. university or institution of higher learning offering a tenure-track position or permanent research position or a permanent research position from a private employer;

Employment can be in any academic field;

Labor certification is not required;

Alien must have 3 years of prior teaching/research experience;

Must have testimonial letters: 4-5 strong objective letters. USCIS has to accept the letters unless there are questions about credentials of the expert or his lack of knowledge. USCIS is not an industry expert.

Articles about the person (not just references to his name).

3. EB-1C – Certain multinational executives and managers

US Companies with foreign subsidiaries or foreign parent companies may petition for an immigrant visa for foreign nationals whom they wish to employ as executives or managers. The beneficiaries mut have worked for a foreign subsidiary or foreign parent company of the US petitioner for at least a year in the last three years before admission in the US. Such US corporate petitioner has to be in existence for at least 1 year.

Executives are persons who:

direct the management of the organization or a major component or function of the organization;
establish the goals and policies of the organization, component or function;
exercise wide latitude in discretionary decision-making; and
receive only general supervision from higher-level executives, the board of directors, or stockholders of the organization.

Managers are persons who:

manage the organization, or a department, subdivision, function, or component of the organization;
supervise and control the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
have the authority to hire and fire supervised employees, or recommend them for a promotion or other personnel action, or (if there are no immediate supervisees) function at a senior level within the organizational hierarchy;and
exercise direction over the day-to-day operations of the activity or function over which the worker has authority.

Labor certification is not required. EB-1C visa is convenient for and is often used by foreign executives and managers who come first on a non-immigrant intercompany transferee L-1 visa to acquire permanent residency in the US.

4. EB-2 – persons with exceptional ability in the sciences, arts, or business and holders of advanced degrees

An advanced degree means a master’s or higher degree from an American university or its foreign equivalent. Alternatively, a person can demonstrate a bachelor’s degree with at least five years of progressive post-bachelor degree experience.

Aliens with exceptional ability sciences, arts, or business must demonstrated by 3 of the following:

An official record showing degree, diploma, or award in area of exceptional ability;
Ten years of full-time experience;
License or certificate to practice the profession;
Evidence that alien command a salary or other remuneration for services which demonstrates exceptional ability;
Membership in professional associations;

Recognition for achievements and significant contributions to the industry or field.

The job offer must demonstrate that employment objectively requires a professional advanced degree or qualifications of a foreigner with an exceptional ability in the sciences, arts, or business. Employer must commit to pay the beneficiary a prevailing wage, as determined by the U.S. Department of Labor. Labor certification is required, which means that the petitioning employer must advertise the position in various media to offer it first to a minimally qualified U.S. worker. Oftentimes, a labor certification is difficult to achieve because U.S. workers minimally qualified for an advertised position are available and willing to be employed. The petitioning employer is not obligated to hire such minimally qualified U.S. worker but cannot proceed with sponsoring a foreigner for an immigrant visa. A labor certification can be waived for certain professionals who have demonstrated high achievements in their fields under the National Interest Waiver (“NIW”) provisions of the law.

To obtain a NIW, a petitioner must show the following: (Matter of Dhanasar was established as precedential and the decision in Matter of New York State Department of Transportation, 22 I&N Dec 215 (Comm 1998) has been vacated)

The foreign national’s proposed endeavor has both substantial merit and national importance;
He or she is well positioned to advance the proposed endeavor;
On balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

Substantial evidence is required to document the NIW eligibility, including, but not limited to (whichever is available), letters of recommendation from colleagues or other authorities in a related field, copies of the articles written by the applicant, copies of any articles where the applicant’s achievements were mentioned, copies of any prizes an applicant had been awarded, receipts demonstrating high salary or any other payments, and statement with the proposed endeavor (business or professional plan).

5. EB-3 – professionals holding Bachelor’s degrees, skilled and unskilled workers

For all the EB-3 beneficiaries a job offer is required, and the U.S. employer acts as a petitioner. For all holders of Bachelor’s degrees a position must objectively requires a Bachelor’s degree. All skilled workers must have education or training in their field and a minimum of 2 years of work experience. Their positions must objectively require the skills which they have. Petitioning employers must commit to pay the prevailing wage as determined by the U.S. Department of Labor. A labor certification is also required which means that the petitioning employer must advertise the position in various media to offer it first to a minimally qualified U.S. worker. Oftentimes, a labor certification is difficult to achieve because U.S. workers minimally qualified for an advertised position are available and willing to be employed. The petitioning employer is not obligated to hire such minimally qualified U.S. worker but cannot proceed with sponsoring a foreigner for an immigrant visa.

Only 10,000 EB-3 visas are issued every year for unskilled workers, and the waiting line in this category currently extends to many years. All applicants for EB-3 visa category should check on the regular basis the Visa Bulletin if the numbers for EB-3 category are current. There are two separate lines for skilled workers and professionals, and “other workers.”

Special note for nurses and physical therapists as beneficiaries of EB-3 visas:

Because of the shortage of Nurses and Physical Therapists in the U.S., registered nurses or a physical therapist who are coming to the U.S. to work in certain health care occupations are exempt from labor certification.

B. Employment-based nonimmigrant visas

Employment-based non-immigrant visas give beneficiary a temporary right to work for a particular employer in the US.

1. H-1B – Workers in Specialty Occupations

The H-1B visa is a non-immigrant visa that may be used to bring a worker temporarily (up to 6 years) to the United States if the employee will work in a “specialty occupation” or a professional position.

A specialty occupation 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.

If the applicant has a college degree or work experience and the job requires a college degree (according to the US Department of Labor), then the applicant should be able to obtain an H-1B work visa. Spouses and children of H-1B work visa holders may enter and remain in the US in H-4 status. H-4 visa holders may attend school in the US but cannot accept employment. However, under new immigration reform guidance, H-4 dependents will be allowed to apply for work authorization.

Each year USCIS issues a limited number of H-1B visas. Every March USCIS holds a lottery where all US companies who desire to petition for foreign workers in specialty occupations may enter to compete for the visa slots. In recent years, the applications-to-visas ratio was anywhere between 4:1 to 6:1. Winning applicants are advised on the availability of the slots by the end of March, and applications for H-1B visas are filed by the end of June.

Certain employers – non-profit research institutions affiliated with universities are exempt from the limitations and lotteries. They can sponsor any number of employees for H-1B and may start the application process at any time.

2. L-1 – Intercompany Transferees

The L-1 visa is useful for business owners and immigrant entrepreneurs who want to start a new business, expand their existing business, or “test the waters” of doing business in the U.S. without a big investment. One can simply form a subsidiary or affiliate in the U.S. or open a new office and start transferring foreign employees under he L-1 visa. No minimum investment and no set number of employees must be hired, however, the company has to show that after one year the company can support the activities of the L-1 visa holder. For more established foreign companies that are expanding or growing in the U.S., the L-1 Visa is also perfect for temporarily bringing an executive, manager (both covered by the L-1A visa), or employees with specialized knowledge or skills (covered by the L-1B visa) to the U.S. to fill a position. The foreign corporation must be a trading/operating corporation, not merely and investment corporation. An example of an investment corporation is a property owning corporation which merely owns a few rental properties and which does not require. daily work on the part of employees. On the other hand, a development corporation that has developed many homes, buildings, commercial properties over a period of time and is constantly purchasing and developing property is a trading corporation. Spouses of L-1 visa holders are eligible for a work authorization, and minor children are eligible for enrollment in public schools. Time in L-1A status is limited to 7 years for L-1A executives and managers and to 5 years for L-1B for essential workers. Executives in L-1A status may transition to a lawful permanent resident (green card holder) status without an onerous labor certification process as EB-1C international executives.

3. O-1 – foreigners with extraordinary ability in the sciences, arts, education, business, or athletics

The O-1 visa is a great way for established foreign artists to bring their talents to U.S.

markets. However, it is available outside of artistic activities as well. The requirements for O-1 status parallels those of the first preference employment-based immigrant classification (EB-1). O-1 visa has the following subcategories:

O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1
O-3: individuals who are the spouse or children of O-1’s and O-2’s

An O-1 visa applicant must be petitioned by a U.S. company, or a U.S. agent. O-1 applicants may not self-petition. The petitioner must a written advisory opinion from a peer group with expertise in the beneficiary’s area of ability. Peer group must be “US Peer.”

If the O-1 petition is for an individual with extraordinary achievement in motion picture or television, the consultation must come from an appropriate labor union and a management organization with expertise in the beneficiary’s area of ability. If the petitioner can demonstrate that an appropriate peer group, including a labor organization, does not exist, the decision will be based on the evidence of record. The petitioner must establish that there are events or activities in the beneficiary’s field of extraordinary ability for the validity period requested, e.g. an itinerary for a tour or a series of events. Unlike the H-1B visa there is no requirement that the petitioner pays to the beneficiary a prevailing wage.

4. P-1 - athletes and entertainers

The P-1 visa is divided into two categories—P-1A or P-1B. The P-1A visa category applies to internationally recognized athletes coming to the U.S. temporarily (individually or as a team) to perform at a specific athletic competition, at an internationally recognized level of performance. The P-1B visa category applies to foreign nationals coming to the U.S. temporarily to perform as a member of an entertainment group that has been recognized internationally as outstanding in the discipline for a substantial period of time.

P-1 athletes and entertainers may also be able to bring assistants or other essential support staff to the U.S. under the P-2 visa.

Requirements for the P-1 Visa

Evidence that the artist, athlete, or entertainer is internationally recognized;
A formal job offer letter or contract specifying the dates for which work authorization is requested and identifying specific events, performances, competitions or engagements the P visa holder will be performing in;
A written advisory opinion from a labor organization that describes an individual’s abilities and achievements in their field;
For entertainment groups, at least 75% of the members of the group must have had a substantial relationship with the group for at least one year;
For athletes, a contract with a major U.S. sports league or team or comparable evidence.

Athletes who cannot meet the “extraordinary ability standard” required for an O-1 visa may petition for a P-1 visa. To qualify for a P-1 visa the athlete must show that he is internationally recognized and is coming to the U.S. to participate in a league or event with a distinguished reputation. Athletes under contract with the NHL, NBA, MLB, MLS and NFL only need to establish that they have a major league contract to qualify for a P-1 visa.

P-1 visas have following limitations:

P-1 entertainers (though not athletes) must be performing as part of a group and not individually;
P-1 holders may work for multiple employers, however, each employer must file a separate application;
Dependents of P-1s are allowed to stay in the U.S. but may not work.

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