employment based immigration

Employment Immigration

NON-IMMIGRANT VISAS
Non-immigrant visas are generally for the purpose of working temporarily in the United States. They typically are known by a letter of the alphabet, such as an O visa or an H-1B. Some visas are renewable indefinitely, while others are good only for a certain number of years. Some visas allow spouses to obtain employment authorization in the United States; others do not. Each visa has its own rules and regulations and serves a different function.

B-1 Business Visitor
If you plan to travel to the United States for short-term commercial or professional reasons, you may want to apply for a B-1 visa. But remember that, with few exceptions, you are not allowed to be paid by a U.S. employer while on the B-1 visa. Foreign nationals from certain countries may be eligible to travel for up to 90 days to the United States under the visa waiver program, which means no visa is required for travel. Anyone planning to travel on the visa waiver program must pre-register using the ESTA (Electronic System for Travel Authorization) program.

E-1 Treaty Traders
The E-1 visa is available to foreign nationals whose countries have a reciprocal treaty with the United States. To be eligible, the treaty trader must carry on substantial trade, principally between the United States and the foreign national’s country. There is no assigned dollar value to the amount of trade, but there should be numerous exchanges of trade involved. Over 50% of the total volume of international trade should be between the U.S. and the trader’s treaty country.

The visa usually is granted in two-year increments and there is no limit on the number of extensions one may apply for.

E-2 Treaty Investors
The E-2 visa is available to foreign nationals whose countries have a reciprocal treaty with the United States. To be eligible, the treaty investor must invest a substantial amount of capital in a U.S. business. There is no simple definition for what constitutes a substantial investment, but it must have the capacity to general more income than what is required for the treaty investor and the investor’s family to live on.

The visa usually is granted in two-year increments and there is no limit on the number of extensions one may apply for.

E-3
Australian citizens may apply for this visa to work in professional fields in the United States. The U.S. employer must pay the prevailing wage, and the job must be classified as a “specialty occupation.” The Australian citizen should have at least a bachelor’s degree and the U.S. job should be related to that degree. These visas are obtained abroad at U.S. consulates. Spouses are eligible to apply for work permits in the U.S.

H-1B
This is the most popular employment visa to the United States. The visa is for professional workers with at least a bachelor’s degree or its equivalent. The visa requires the U.S. employer pay the prevailing wage, and the job must be in a specialty occupation related to the worker’s field of study.

Because only 65,000 visas are available annually, in recent years USCIS has held a lottery to determine which workers will be able to obtain the visa. Some U.S. employers are not subject to the “cap,” as the limit on the number of visas is known. H1-B visas awarded to U.S. educational institutions and government research institutions, for example, are not subject to the cap. Each year USCIS begins accepting applications for new H1-B visas on April 1, with a job start date of October 1.

L-1 Intracompany Transferee
The L-1 visa enables an employer to transfer a managerial or executive employee, or an employee with specialized knowledge, to the United States for work at a branch or subsidiary of the foreign company. The employee must have spent at least one of the prior three years working for the foreign company to be eligible for the L-1 visa.
A multinational company may obtain an L-1 visa to send a managerial or executive employee to the United States to open a new office here. The foreign employer must lease office space and provide a business plan showing that the company will support a managerial or executive employee within a year of approval of the petition.

O Extraordinary Ability Workers
This visa is available to foreign nationals with extraordinary ability in the sciences, arts, education, business, or athletics, or those who have a demonstrated record of extraordinary achievement in the motion picture or television industry. To obtain an O visa, you must have been recognized nationally or internationally for your achievements, show sustained acclaim, and demonstrate that you have risen to the top of your field of endeavor.

Unless you have a career-defining achievement, such as an Academy Award or an Emmy, you must meet a minimum of three criteria that demonstrate your extraordinary achievements. The criteria vary slightly depending on which subset of O visa you fall into. However, for all of the O visas it is vital to gather any articles or other media about you and your work. Other criteria include membership in exclusive professional associations, judging the work of others in your field, and a high salary in relation to others in your field.

Prior to applying for the O visa, you must obtain a consultation letter from an appropriate peer group that attests to your abilities or a “non-objection letter” from a labor union that will not disfavor your employment here.

The O-2 visa is for workers who assist an O-1 visa holder.

P Visas for Internationally Recognized Athletes and Artists
The P-1 classification applies if you are 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.

P-2 visas are for individual and group performing artists participating in a reciprocal exchange program. P-3 visas are for culturally unique artists or entertainers. You must obtain a written consultation from an appropriate labor organization.

TN Visa
This visa is available to Canadians and Mexicans as part of the North American Free Trade Agreement (NAFTA). Jobs that qualify for a TN are provided on NAFTA’s specifically designated list. Canadians apply for TN visas at land borders or airports. Mexican citizens must apply at a U.S. consulate. The visas are valid for up to three years and can be renewed indefinitely.

IMMIGRANT VISAS
A permanent green card may be obtained through employment. This requires knowledge of Department of Labor and USCIS procedures and practices. There are several potential routes to a green card through employment.

Labor Certification
This process to obtain a green card has three parts: First, obtain a labor certification from the Department of Labor’s Program Electronic Review Management (PERM) application process. This involves testing the job market to determine that a qualified U.S. worker is not being turned away from the job. Second, file an immigrant visa petition demonstrating, among other things, that the employer has the ability to pay the worker’s wages. Finally, process the green card through a U.S. consulate or by adjusting status in the United States.

EB-1 (Employment-Based Immigration First Preference)
Our office specializes in obtaining visas for foreigners with extraordinary abilities. The great advantage of this visa is that is does not require a U.S. employer. If you meet the eligibility criteria, you may file for the visa on your own. We specialize in providing a detailed assessment of your case and artfully preparing all of the evidence to persuade USCIS that you merit a green card because of your extraordinary work. Our clients have included classical musicians, actors, comics, jugglers, art curators, visual effects specialists and scientists.

The EB-1 extraordinary ability classification is for people who are recognized as being at the very top of their field and who are coming to the United States to continue work in that field. To establish eligibility, you must demonstrate sustained national or international acclaim and that your achievements have been recognized in the field of expertise by showing: (1) that you have received a major internationally recognized award, similar to a Nobel Prize; or (2) that you meet at least three of the ten requirements listed below and all your evidence, when evaluated together, shows that you are among the small percentage of individuals that have risen to the very top of your field. If you have not received a major internationally recognized award, you must answer yes and submit evidence for at least 3 of the 10 questions below:

• Have you received any lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor?

• Are you a member of associations that require outstanding achievements of their members as judged by recognized national or international experts?

• Is there published material in professional or major trade publications or major media about you which relates to your work in the field?

• Have you participated on a panel or individually as a judge of the work of others in the same or in an allied field of specialization?

• Have you made original scientific, scholarly or business contributions that are of major significance?

• Have you authored scholarly articles in professional journals or other major media?

• Has your work been displayed at artistic exhibitions or showcases?

• Have you played a leading or critical role for an organization with a distinguished reputation?

• Have you or will you command a high salary or other remuneration for your services in comparison to others in your field?

• Have you enjoyed commercial successes in the performing arts?

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