Employment-Based Visas

Business-Bases Visa / Employment-Based Visa

One of the most sought-after visas is known as the H-1B visa, which is an employment-based visa. This type of visa are temporary, but permit employers to hire and petition for foreign nationals for specific jobs for limited periods of time. Most temporary workers must work for the employer that petitioned for them and have limited ability to change jobs. In most cases, they must leave the United States, if their status expires or if their employment is terminated.

An Employment-Based Immigration visa can eventually become a permanent resident and receive a Green Card; and immigrants who acquire Lawful Permanent Resident (LPR) status through employment may apply for U.S. citizenship after five (5) years.

The adjustment of status to permanent residency based on employment, generally involves a three-step process:

1. First, employers seeking to petition on behalf of foreign workers are commonly required to obtain 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 here the position is located.
2. Second, the employer is required to petition U.S. Citizenship and Immigration Services (USCIS) for the foreign worker. There are limited circumstances, where the immigrants can petition for themselves.
3. Third, a foreign worker who is already in the United States in a temporary visa classification may apply for “adjustment of status” to permanent residence upon the approval of the employer’s petition, if there is a visa number available. If these conditions have been met and the individual is outside the United States or is in the United States but chooses to apply for an immigrant visa at a U.S. Embassy or Consulate abroad, the individual files an immigrant visa application, which is processed by a U.S. Consular Officer.

The overall numerical limit for permanent employment-based immigration is 140,000 per year. But this number includes not only the immigrants themselves, but their eligible spouses and minor children as well. This means that the actual number of employment-based immigrants is less than 140,000 each fiscal year.

The Different Types of Business-Based Visas / Employment-Based Visas

• EB-1:

  The EB-1 visa is for three (3) types of people and you qualify if you fit under the listed category. People with extraordinary ability in science, art, education, business, or athletics, which has been demonstrated by sustained national or international acclaim. Currently this category is awarded 40,000 visas annually, plus any unused visas from the 4th and 5th preference categories.

• EB-2:

  This second category is for people with exceptional abilities or people with advance degrees, which means a degree higher than a master’s degree or a person with a bachelor’s degree and five (5) years of work experience. In this category, the process starts with a PERM application, also known as a “Labor Certification.” This requires advertising the position and the employer can successfully continue with the Green Card process through the job offer, if it is shown that the job offer will not displace American workers.

  However, an employer is exempt from the PERM process, if it will be contrary to the National Interest of the United States for the employer to go through the PERM process. You and your employer can petition the NIV, which allows you to skip the Labor Department PERM application process. Currently this category is awarded 40,000 visas annually, plus any unused visas from the 1st preference category.

• EB-3:

  The third category is a preference for professional and skilled workers. It requires a four-year degree or its equivalency. This category always has the longest wait time, because it includes skilled workers and other workers, which increases the number of applicants applying for the very limited supply of visas. The PERM application process through the Department of Labor (DOL) is a requirement of this category. Currently this category is awarded 40,000 visas annually, plus any unused visas from the 1st and 2nd preference categories.

• EB-4:

  The fourth category is for particular groups of immigrants, known as “Special Immigrants.” This includes religious workers, religious ministers, Juveniles with a Special Immigrant Juvenile Status (SUS), translators, government employees and more. Currently this category is awarded 9,940 visas annually.

• EB-5:

  This fifth category is the Immigrant Investor Program. Under this program, the investor, their spouse, and unmarried children under 21 are eligible to apply for a Green Card (permanent residence). If they are willing to invest $900,000 for Targeted Employment Areas (TEA) or $1.8 million as the standard minimum investment amount in non-TEAs, in a job-creating enterprise that will create or preserve at least ten (10) permanent full-time for qualified U.S. workers. Currently this category is awarded 9,940 visas annually.
  Note: the EB-5 investment category is different from the E-2 Investor Treaty Visa, which is limited to only the nationals of treaty countries, with which the United States maintains a treaty of commerce and navigation.