Employment-based immigration

Employment-based immigration

Employment-based immigration

Attorney Samia Chandraker, of counsel with our office, has over 20 years of experience in employment based immigration.  Along with Attorney Chandraker, our office provides employment based immigration services to companies.

Temporary Employment-Based Visa Classifications

There are many different temporary employment-based visa classifications.

H-1B H-2A H-2B L-1A & L-1B
Who is eligible? Certain foreign professionals in “specialty occupations.” Temporary agricultural workers form certain designated countries “Seasonal” non-agricultural temporary workers. Certain foreign workers employed by certain entities abroad that are related to U.S. employers, whose services are being sought by their employers in the United States.
Are there any numerical annual limits? 65,000 per year, plus 20,000 more for foreign professionals with a U.S. master’s or higher degree. No annual limit. 66,000 per year. No annual limit.
Duration Initially admitted for a period of up to three years; may be extended for a maximum of three additional years. Initially admitted for a period of approved employment; may be renewed for qualifying employment in increments of one year each for a maximum stay of three years. Initially admitted for a period of up to one year; may be renewed twice for a maximum stay of three years. Initially admitted for a period of up to three years; may be extended for a maximum of two additional years for an L-1B and four additional years for an L-1A.
Employer requirements The employer must attest that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. Employers must comply with wage requirements. The employer must attest that no qualified available U.S. workers can fill the position. Employers must comply with recruitment, wage, benefits housing, transportation, and other requirements. The employer must attest that no qualified U.S. workers who can fill the position are available. Employers must comply with wage, housing, transportation, and other requirements. No requirements regarding adverse effects, wages, housing, etc.
May the foreign workers bring their spouses and children under 21? Yes, spouses and children under 21 may enter on an H-4 visa, and certain spouses are allowed to work. Yes, spouses and children under 21 may enter on an H-4 visa, and certain spouses are allowed to work. Yes, spouses and children under 21 may enter on an H-4 visa but may not work. Yes, spouses and children under 21 may enter on an L-2 visa, and spouses are allowed to work.

Permanent Employment-Based Immigration

Lawful permanent residency allows a foreign national to work and live lawfully and permanently in the United States. Lawful permanent residents (LPRs) are eligible to apply for nearly all jobs and can remain in the country even if they are unemployed. Immigrants who acquired LPR status through employment may apply for U.S. citizenship after five years.

  1. Employers seeking to petition on behalf of foreign workers are commonly required to obtain a certification from the Department of Labor (DOL) establishing that there are no U.S. workers available, willing, and qualified to fill the position at a wage that is equal to or greater than the prevailing wage generally paid for that occupation in the geographic area where the position is located.
  2. The employer files a petition with the U.S. Citizenship and Immigration Services (USCIS) for the foreign workers. There are some situations where the foreign workers can self-petition.
  3. A foreign worker who is already in the United States in a lawful status, may apply for adjustment of status upon the approval of the employer’s petition, if there is a visa number available. If the individual is outside of the United States, the individual files an immigrant visa application that is processed by a U.S. consular officer at the U.S. Embassy or Consulate abroad.

The overall numerical limit for permanent employment-based immigration is 140,000 per year (this figure includes the foreign worker and their eligible spouses and minor children as well). The allocation of these visas is determined by the preference category and the country of origin of the applicant. The status is updated monthly on the visa bulletin (link to: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html)

Preference Category Preference Category Yearly Numerical Limit
1-Priority Worker “Persons of extraordinary ability” in the arts, science, education, business, or athletics; outstanding professors and researchers; multinational managers and executives.” 40,000 (plus any unused visas from the 4th and 5th preference categories) or 28.6 %
2- Professionals with Advanced Degrees or Exceptional Ability Members of the professions holding advanced degrees, or persons of exceptional abilities in the arts, science, or business. 40,000 (plus any unused visas from the 1st preference) or 28.6 %
3- Skilled Workers, Professionals, and Unskilled Workers Skilled workers with at least two years of training or experience, professionals with college degrees, 40,000 (plus any unused visas from the 1st or 2nd preference) or 28.6 %
4- Certain Special Immigrants Certain “special immigrants” including religious workers, employees of U.S. foreign service posts, translators, former U.S. government employees, and other classes of noncitizens 9,940 or 7.1 %
5- Immigrant Investors Persons who will invest $500,000 to $1 million in a job-creating enterprise that employs at least 10 full-time U.S. workers 9,940 or 7.1%

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