By Michael H. Markovitch, Esq. on August, 11, 2016
This article will discuss the various business and employment visas and green cards which are available for those seeking to work and live in the United States either on a permanent or temporary basis.
A person of extraordinary ability may petition for this achievement-based pathway to attaining permanent residency in the United States. In order to qualify, the person must be able to demonstrate that the individual has risen to the top of his or her field. In addition, the applicant must intend to continue working in the area of extraordinary ability in the United States. This category does not require labor certification or a permanent job in the United States. The processing time for this category is faster than that of labor certification. The applicant may self-petition by filing the Immigrant Petition for Alien Worker along with evidence of extraordinary ability. An applicant must demonstrate an extraordinary ability in sciences, arts, education, business or athletics, which has been demonstrated by sustained national or international acclaim. The achievements must have been recognized in the field through extensive documentation. This documentation could be the one-time achievement of a major, internationally-recognized award (like the Nobel Prize, an Oscar, or something similar). Alternately, the documentation may include three of the following: nationally or internationally recognized prizes or awards, membership in an association in the field of extraordinary ability which requires outstanding achievement, published material about the applicant in a professional publication or other major media, participation as a judge in the work of others in the field, evidence of original contributions of major significance, authorship of scholarly articles, artistic exhibitions, performance in a leading role for an organization with a distinguished reputation, high salary in relation to others, and commercial success in the performing arts. One would need to present extensive documentation in order to demonstrate eligibility as a person of extraordinary ability. We have successfully obtained this classification for individuals in varied fields, including scientific researchers, athletes and business leaders.
An employer may seek to classify an outstanding professor or researcher through this achievement-based pathway to permanent residency in the United States. In order to qualify, the organization must be able to demonstrate the beneficiary meets three criteria: recognition internationally in the specific academic area, 3 years’ experience teaching or researching in the academic area and a tenure-track faculty position or a permanent job offer in the academic field. International recognition in the field may be evidenced by demonstrating at least two of the following: receipt of major awards for outstanding achievement, membership in an association that requires outstanding achievement, published material in professional publications written by others about the applicant’s work, participation as a judge of the work of others, and authorship of scholarly books or articles. A petition for this first preference category does not require labor certification. The processing time for this category is faster than that of labor certification. The applicant applies by filing the Immigrant Petition for Alien Worker along with evidence in support of the outstanding professor or researcher.
EB-1 C immigrant visas are for multinational executives and managers. These are generally the same foreign nationals that would be eligible for the L-1A nonimmigrant visa. An eligible employee, who has a job offer by a U.S. organization, must have worked abroad for the company continuously for at least one year within the previous three prior to the application for admission; however, the “one of 3 year requirement” may be met if the person is in the U.S. for more than 3 years if he/she is working for the same employer, affiliate or subsidiary in the U.S. and was employed for at least one of the last 3 years by the company abroad before entering the U.S. in nonimmigrant status. The foreign company must be a parent, branch, affiliate, or subsidiary of the U.S. petitioning company. In addition, the position must meet the legal definition of managerial or executive capacity, the organization must reasonably need a manager or executive, and the company must continue to operate abroad. One will need to present the precise and substantial documentation required to show: that the foreign national is being employed as a manager or executive within the legal definition, that the required intracompany relationship exists, and that the foreign national has the requisite experience at the company abroad.
A Second Preference applicant must generally have a labor certification approved by the Department of Labor before filing an immigrant visa petition. In order to be eligible, a job offer is required, and the U.S. employer files the Immigrant Petition for Alien Worker on behalf of the applicant. Professional positions requiring an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience may qualify under the employment based second preference category. Persons with exceptional ability in the sciences, arts, or business may also qualify within the EB-2 category. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. National Interest Waiver—An applicant may receive a waiver of the requirement of labor certification if the work that the applicant is doing is in the national interest of the United States and the applicant has an excellent record of achievement. A Master’s degree or a demonstration of “exceptional ability” in the field is required. The Board of Immigration Appeals provided a test for what is in the national interest. In order to qualify for a National Interest Waiver, an applicant must: work in an area of “substantial intrinsic merit,” demonstrate that the benefits of the his/her work are “national in scope,” and establish a past record of achievement that demonstrates benefit in the national interest to a “substantially greater degree than would an available U.S. worker having the same minimum qualifications.” An applicant may self-petition for the second preference category by filing the petition along with evidence documenting the eligibility for the national interest waiver.
A Third Preference applicant must have an approved Immigrant Petition for Alien Worker, Form I-140, filed by the prospective employer. The applicant must have an offer for a full-time position. Generally, a labor certification approved by the Department of Labor is required. There are three subcategories within the EB-3 preference category. The first is positions for skilled workers requiring a minimum of 2 years training or work experience. Professional positions, which require at least a bachelor’s degree from a university in the United States, or its foreign degree equivalent is the second category. The third category is for unskilled workers, who are capable of filling positions that require less than two years training or experience that are not temporary or seasonal. Labor Certification may be avoided (thus shortening the processing time) if the EB-3 applicant is working in a position that has been determined to be one where a shortage of U.S. workers exists. Professional nurses, physical therapists, and foreign nationals of exceptional ability in the arts and sciences, including teachers at the university-level, may not need to file a labor certification before the employer files Form I-140, Alien Worker Petition on behalf of the foreign national.
The EB-4 Special Immigrant Religious Workers visa allows a foreign national who is a minister or worker in a religious organization to enter the U.S. to obtain permanent residency. To qualify, the applicant must be a member of a religious denomination that has a non-profit religious organization in the United States. The applicant must have been a member of this religious denomination for at least two years immediately preceding the application--either abroad or legally in the U.S. In addition, the applicant must have been working as a minister or in a religious occupation for the two years immediately preceding the application and be entering to work in the U.S. as a minister or in a religious occupation for the denomination. An application for this first preference category does not require labor certification, so the processing will be faster than for a petition requiring labor certification. In addition, the visa quota for the EB-4 category is generally never met; therefore a visa can be obtained as soon as the petition is approved. The minister or religious worker applies by filing the Immigrant Petition for Special Immigrant, Form I-360, along with the supporting evidence. Establishing eligibility for EB-4 visas can be a challenge. Even in cases where a petition includes the necessary documents, they must be presented in a logically organized format so that the immigration officer reviewing the case is led to make a favorable decision.
EB-5 immigrant visas are available for investors who create jobs in the United States by investing and taking an active role in a new commercial enterprise (or restructuring or expanding one that already exists). This U.S. business must create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years of the investor’s admission to the United States as a Conditional Permanent Resident. The investor’s minimum qualifying investment is $1 million. However, the minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000. Upon approval of the initial petition, the investor and his/her spouse and unmarried children under the age of 21 are granted Conditional Permanent Residency for two years. At the end of the two year period, the investor files a request with the USCIS for the removal of the condition on the green card by demonstrating that all of the requirements of the investment have been met.
Labor certification is the process of obtaining approval from the U.S. Department of Labor (DOL) that there are an insufficient number of U.S. workers who are able, willing, qualified and available to fill a particular position at the prevailing wage for the job. This process requires a good faith test of the labor market by following very strict requirements. This includes attestations by the employer that hiring a foreign national employee will not adversely affect the conditions of U.S. workers. The position must be advertised to reflect the minimum education and experience requirements for the position. The position cannot be tailored to reflect the foreign national’s qualifications. DOL requirements specify that the employer may neither seek nor receive payment of any kind from the foreign national employee for any activity related to the labor certification process including the recruitment costs and attorney fees.
H-1B Visas—Specialty Occupations The H-1B nonimmigrant visa was created for foreign national employees in specialty occupations that require theoretical or technical expertise in specialized fields. The visa requires an employer sponsor, and the prospective foreign national employee must have at least a bachelor’s degree or foreign equivalent. There is an annual statutory cap on the number of new H-1B visas available. An H-1B visa may be extended up to six years and beyond in certain circumstances. Cap subject H-1B visas, or visas for those who are not already H-1B visa holders, are available beginning April 1st of every year with an October 1st start date. Employees with valid H-1B visas are only authorized to work for their sponsoring employer but may be eligible to port to another employer under certain circumstances. An H-1B worker's spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the United States while in H-4 status.
H-2A nonimmigrant work visas allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural jobs. To qualify for H-2A nonimmigrant classification, the petitioning employer must: offer a job that is of a temporary or seasonal nature, demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work, and show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. H-2A petitioners must obtain a single valid temporary labor certification from the U.S. Department of Labor. H-2A petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, as eligible to participate in the H-2A program. The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries annually in a Federal Register notice, and designation of eligible countries is valid for one year from publication. Individuals who are not from a designated country may be granted an H-2A in limited circumstances. An H-2A worker's spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification.
H-2B nonimmigrant visas allow foreign nationals to enter into the U.S. temporarily and engage in non-agricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. This visa may be used for entertainers going on a tour, for film workers or professional minor league players. There is an annual statutory cap on the number of H-2B visa available. To qualify for H-2B nonimmigrant classification, the petitioning employer must establish that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work, the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers, and its need for the prospective workers’ services is temporary, regardless of whether the underlying job can be described as temporary. H-2B petitioners must obtain a single valid temporary labor certification from the U.S. Department of Labor (DOL). H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, as eligible to participate in the H-2B program. The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries annually in a Federal Register notice, and designation of eligible countries is valid for one year from publication. Individuals who are not from a designated country may be granted an H-2B in limited circumstances. An H-2B worker's spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the United States while in H-4 status.
L-1 nonimmigrant visas are available to foreign nationals who are employees of an international company with offices in both the United States and abroad. The L visa allows the employee to relocate to the U.S. office after having worked abroad for the company continuously for at least one year within the previous three prior to the application for admission. The foreign company must be a parent, branch, affiliate, or subsidiary of the U.S. petitioning company. L-1 classification may also be used for a foreign company to send an employee to the United States to help establish an affiliated U.S. office, with additional requirements. L-1A visas are for executives and managers. L-1B visas are for workers with specialized knowledge. With extensions, the maximum continual period that an L-1A and L-1B may be approved for is 7 and 5 years, respectively. Application for an L visa begins with the filing of an I-129, Petition for Nonimmigrant Worker, by the petitioning U.S. employer. Supporting documentation must establish the employee’s eligibility and the requisite relationship between the U.S. and foreign companies. Regular L-1 visas are applied for and approved for each individual. Certain organizations may establish the required intracompany relationship in advance of filing individual L-1 petitions by filing a blanket petition; thereafter, the company’s L visa petitions need only include a copy of the approved blanket petition, along with documents supporting the employee’s personal qualifications. The employee would then take the Approval Notice and apply for the visa at a U.S. consulate or embassy. An applicant employee who is already in the U.S. in a legal status may request a change of status at the time of filing the I-129. An L-1 worker’s spouse and unmarried children under 21 years of age may seek admission in L-2 nonimmigrant classification. An L-2 spouse is eligible to apply for an Employment Authorization Document and work in the United States. Dependent L-2 children cannot accept employment but can attend school in the U.S.
The E category of nonimmigrant visas includes treaty traders (E-1) and treaty investors (E-2) who come to the U.S. under a treaty of commerce and navigation between the U.S. and the country of citizenship or nationality of the treaty trader or investor. This category also includes certain specialty occupation professionals from Australia (E-3); this category is similar to H-1B but only available for Australian nationals. Foreign nationals apply for E visas at the consulate; extensive documentation is required. The U.S. has treaties with 75+ countries. Spouses and unmarried children under 21 years may receive derivative E visas in order to accompany the principal visa holder. The spouse of an E visa holder may apply for employment authorization; dependent children of an E visa holder are not authorized to work in the U.S. but may attend school.
The O-1 nonimmigrant category is a temporary work visa for an individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. In order to qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability. An O-2 nonimmigrant visa is available for a foreign national who is accompanying and assisting an O-1 artist or athlete for a specific event or events. O-2 applicants must demonstrate that that they are essential to the performance, possess critical skills and experience in support of the O-1 applicant that cannot be performed by others, and that the O-2 applicant has a foreign residence that he/she has no intention of abandoning. An O-3 visa is available for the spouse and unmarried, minor children who are accompanying an O-1 or O-2 visa holder. The O-3 visa holder may not work while in the United States.
An R-1 visa is a temporary work visa which allows a foreign national to enter into the U.S. to temporarily engage in work as a minister or religious worker. R-1 visas may be extended for up to five years and beyond in certain circumstances. To qualify for an R-1 nonimmigrant classification as a minister, the minister must be fully authorized and trained in a religious denomination to conduct religious worship and perform other duties usually performed by clergy of the denomination, and the minister must work solely in this capacity in the U.S. To qualify for an R-1 nonimmigrant classification as a religious worker, the applicant must be a member of a religious denomination, having a bona fide nonprofit religious organization in the U.S., for at least 2 years immediately preceding the application for admission. The religious worker must be coming to perform a religious vocation or occupation either in a professional or nonprofessional capacity at least part-time. The petitioning employer files an I-129, Petition for Nonimmigrant Worker, along with the supporting documentation. An R-1 worker’s spouse and unmarried children under 21 years of age may seek admission in R-2 nonimmigrant classification. The R-2 family members cannot accept employment, but can attend school, in the U.S.
The P-1A nonimmigrant visa category is for foreign nationals temporarily coming to the U.S. 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. Members of athletic teams may also be eligible for P-1A visas to participate in distinguished team events if the team has achieved significant international recognition in the sport. P-1B nonimmigrant work visas are for those 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 sustained and substantial period of time. The reputation of the group, not the individual achievements of its members or the acclaim of a particular production, is essential. P-2 nonimmigrant work visas are available for foreign national artists or entertainers, who are coming to the U.S. to temporarily perform under a government-recognized reciprocal exchange program between an organization in the U.S. and an organization in another country. The applicant, who may be performing individually or as part of a group, must possess skills comparable to those of the United States artists and entertainers taking part in the program outside the United States. The P-3 nonimmigrant visa category is for those persons coming temporarily to the U.S. to perform, teach or coach as artists or entertainers, individually or as part of a group, under a program that is culturally unique such as traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation. The applicant must be coming to the United States to participate in a cultural event or events which will further the understanding or development of the culturally-unique art form. Essential support personnel, who are an integral part of the performance of a P visa holder, are eligible for P visa classification where the support services cannot be readily performed by a U.S. worker. The spouse and unmarried children (under the age of 21) of a P visa holder may obtain a P-4 visa. Dependents with P-4 visas may not engage in employment while in the United States.
For further information or questions you may have, please do not hesitate to contact The Law Offices of Michael H. Markovitch.
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