Employment-Based Visas

There are many options to choose from, and trying to navigate the visa landscape can often be overwhelming without the help of an experienced immigration attorney. Below is a summary of the options we can help you with:

E1/E2 Treaty Investor Visa: E-1 and E-2 visas are available to citizens of foreign countries that have a treaties of commerce and navigation, or a bilateral investment treaty providing for nonimmigrant entries, with the United States. In many cases, it may be worth considering the E2 treaty investor or E1 treaty trader visa scheme. Usually, under the E2 Visa or E1 Visa scheme the business needs to show that it is at least fifty percent owned by a national or nationals on the list of E2 Visa or E1 Visa Countries. Both investors and employees of the same nationality can come under these visa schemes.

E2 treaty investor companies may be able to be registered under the E2 scheme with investments of tens of thousands of dollars or less. This is a much smaller investment requirement than the minimum $500,000 required under the EB5 immigrant investor scheme. 

You also do not need to employ many people in the US under the E2 Visa and E1 Visa schemes. Once the business is registered under the E2 Visa or E1 Visa scheme E2 and E1 employee visas can be obtained much more cheaply and more quickly than say L1 or H1B visas. E3 visas can only be applied for by Australians.

B-1 and B-2 nonimmigrant visas are for individuals, from countries for which the United States requires a visa, who wish to enter the United States temporarily for any of the following purposes: for business (B-1) such as consulting with colleague, presenting a lecture, attending a conference, a job interview, or an observership; for pleasure/tourism, medical treatment, or amateur, unpaid participation in musical or sports events (B-2); or a combination of both (B-1/B-2). 

Visitors for business must be self-supported and may not receive payments for any business conducted, though honoraria may be allowed in certain circumstances. B-1 and B-2 visitors may not engage in employment. Additionally, there are strict requirements on studying in the United States as a visitor.

While B-1 or B-2 visas may be valid up to 10 years, visitors on B-1 or B-2 will only be allowed to stay in the United States for a short duration (maximum 6 months), as granted by US Customs and Border Protection upon arrival.

Employees eligible for L1A visa:

• Manage an organization, subdivision, department, or part of the organization;
• Control and supervise the work of other professional, managerial, or supervisory employees, or manage essential functions with the company, department, or subdivision;
• Have the authority to fire and hire, recommend promotions; if no employee supervision is needed, then he or she must function at the senior level within the organization’s hierarchy;
• Exercise discretion over daily operations and set up policies and goals.

Employees eligible for the L1B visa: Possess unique or special knowledge of the appealing organization’s service, research, product, techniques, management, equipment or interests and application in international marketplaces, or an advanced knowledge level, or expertise in the firm’s procedures and processes.

The L1A visa is granted for a period of 1 year for new, start-up companies and 3 years for existing companies. L1A employees may be granted L1A visa extensions of 2-year increments for up to 7 years.

The L1B visa is granted for a period of 1 year for new companies and 3 years for existing companies. L1B employees may be granted L1B visa extensions of 2-year increments for up to 5 years.

The O1 visa for the US is a non-immigrant type of visa, which is issued to foreign nationals who have exceptional abilities or achievements in their field. Because it is aimed at individuals in science, education, or the arts, it is also referred to as an extraordinary ability visa or an artist’s visa. You can apply for an O1A visa if you have extraordinary abilities in the fields of arts, sciences, education, business, or athletics. You can apply for an O1B visa if you have extraordinary ability in the arts or outstanding achievement in the industry of motion picture or television.

To qualify for an O1 visa, you must meet the following criteria, depending on your field of ability: For science, education, business, or athletics: You must have ability that distinguishes you from others in the field. In other words, you must be one of the “top” percentages. For figures in the field of arts: You need to be distinguished in the field of arts and have higher achievements than most. For example, you should be a renowned, leading, or well-known figure in the field – someone who has. For figures in the motion picture or television industry: You need distinction – for example, being recognized as someone with a higher degree of skill than others, and who is a leading, notable figure in the field. Additionally, you must be travelling to the United States to work in your field of ability for a temporary period of time.

The P-1 visa is a specialty U.S. visa exclusively for athletes (or other entertainers) and their coaches or support staff. You may apply for a P-1 if you are…

• An internationally recognized, professional athlete or athletic team looking to enter the U.S. in order to compete or take part in an event of international standing. There are many paths to proving exceptional achievement, which might include winning a substantial award, holding a high ranking, representing their sport’s national team, or competing in the U.S. for a university. (This is the P-1A visa.)
• If coming to the United States as part of a team under the P-1A, the team must be able to supply a similar level of international recognition. Also, you must show that the team will be competing against other teams with a similar level of skill and achievement.
• An entertainment group that is recognized as outstanding, who plan to perform within the U.S. (whether single event or tour). The group must typically have been set up and active with at least three quarters of the group’s members able to show “a substantial and sustained relationship” with the group for a minimum 12 months. (This is the P-1B visa.)
• Coaching staff or support personnel of the athlete or entertainer who must help the beneficiary to pursue their field of activity. These staff would apply for the P-1S visa.

In the case of athletes, the P-1 does not prevent other activities that are not directly related to the sport, for example attending publicity events or endorsements organized by their employer or agent. The term of a visa is usually based on the planned performance or competition schedule. The maximum allowable initial stay is up to 5 years, but this may be extended by up to 5 more years giving a maximum duration of 10 years.

The R-1 visa is a nonimmigrant United States visa. It is designed to help eligible religious workers to work within the United States for a religious organization. The religious organization must be registered as a nonprofit in the US, linked to a US religious denomination or a religious group with a tax exemption. The visa is specifically meant for individuals that work directly in religious work, like preaching. People working within the administrative side of a religious organization cannot apply for an R-1 visa. There is no cap on how many people can obtain an R-1 visa.

If granted an R-1 visa, the recipient may open bank accounts, apply for a driver’s license and study at US institutions. You may also travel outside of the US and this time will not be counted as part of your total visa duration. Additionally, you are able to work in another country without it affecting your R-1 visa. To be eligible for this visa you must:

• Have been a member of the religious organization for at least the past two years
• The applicant must be a minister or the religious equivalent
• The applicant must work at least 20 hours a week
• The applicant may not work for in any other positions while in the US

For this visa, a religion must meet the following criteria:

• MUST BE A COMMUNITY WHO BELIEVE AND ARE GOVERNED BY AN ECCLESIASTICAL GOVERNMENT
• MUST WORSHIP SIMILARLY
• SHARED RITUALS, SERVICES AND CEREMONIES
• SHARED DOCTRINE AND CODE OF CONDUCT
• SHARED PLACE OF WORSHIP

Many foreign nationals looking to immigrate to the United States to work are oftentimes asking more questions about the job offer requirement. This is a very important part of your US work visa application process as it’s the main requirement to qualify. Program Electronic Review Management (PERM) is an online processing system for filing labor certification applications. Under this system, labor certification applications are filed directly with the US Department of Labor (DOL). This is considered the first step for specific foreign nationals to obtain an EB Visa (employment-based green card) in the United States. The visas include:

• EB-2 | Professionals
• EB-3 | Skilled Workers

Do I Need A PERM Labor Certification?

You as the worker applying for the EB visa specifically do not need a labor certification, your petitioning employer does! Before applying for your visa, your employer will need to complete an ETA Form 9089 and send it to the DOL. The DOL will then make sure that there aren’t any jobless US residents that are willing, qualified, and available to do the job. They will also check that no one’s wages are being affected by you taking the job. There is no cost for employers to petition a worker and apply for a PERM labor certification. Employers will need to only pay associated fees when sending their Form I-140 (Immigrant Petition for Alien Worker) to the USCIS.

What is PERM processing time?

The processing time for a PERM labor certification solely depends on if the business/employer is going to be audited or not. Currently, the average wait time for those that do NOT need to be audited can receive their labor certification within 90 days.

Being Audited for a PERM Labor Certification

If your company as an employer is being audited in order to receive a PERM labor certification, listen up! Supporting documents are not needed to file BUT they need to be ready prior to filing. This means anything such as website printouts, job orders, etc. should be saved by the employer for 5 years to ensure compliance with a potential audit or review. If the case is selected by the DOL for auditing, the employer should send all requested documents to the DOL within 30 days. If the employer does not respond to the audit request, the case could be abandoned, and the employer may have to conduct “supervised recruitment” for any future Labor Certification applications.

What Happens After PERM is Approved?
Once a PERM application is approved by the DOL, the employer must file a Form I-140 Immigrant Worker Petition with the USCIS within six months of the approval date. The USCIS processing time for an I-140 Petition is typically 4 to 6 months. This form can help you obtain an EB classification.

Employment First Preference (EB1): Priority Worker and Persons of Extraordinary Ability

There are three sub-groups within this category:

• Persons with extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in their fields of expertise. Such applicants do not have to have specific job offers, so long as they are entering the U.S. to continue work in the fields in which they have extraordinary ability. Such applicants can file their own Immigrant Petitions for Alien Worker, Form I-140, with the USCIS.
• Outstanding professors and researchers with at least three years’ experience in teaching or research, who are recognized internationally. Applicants in this category must be coming to the U.S. to pursue tenure, tenure track teaching, or a comparable research position at a university or other institution of higher education. The prospective employer must provide a job offer and file an Immigrant Petition for Alien Worker, Form I-140, with the USCIS.
• Multinational managers or executives who have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant’s employment outside of the U.S. must have been in a managerial or executive capacity, and the applicant must be coming to work in a managerial or executive capacity. The prospective employer must provide a job offer and file an Immigrant Petition for Alien Worker, Form I-140, with the USCIS.

Employment Second Preference (EB2): Professionals Holding Advanced Degrees and Persons of Exceptional Ability

A Second Preference applicant must generally have a labor certification approved by the Department of Labor. A job offer is needed, and the U.S. employer must file an Immigrant Petition for Alien Worker, Form I-140, on behalf of the applicant. Applicants may apply for an exemption, known as a National Interest Waiver, from the job offer and labor certification if the exemption would be in the national interest. In this case, the applicant may self-petition by filing the Immigrant Petition for Alien Worker, Form I-140, along with evidence of the national interest. Professionals Holding Advanced Degrees and Persons of Exceptional Ability receive 28.6 percent of the yearly worldwide limit of employment-based immigrant visas, plus any unused visas from the Employment First Preference category.

There are two subgroups within this category:

• Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession.
• Persons with exceptional ability in the sciences, arts, or business. Exceptional ability means having a degree of ability significantly above that ordinarily encountered in the sciences, arts, or business.

Employment Third Preference (EB3): Skilled Workers, Professionals, and Unskilled Workers (Other Workers)

A Third Preference applicant must have an approved Immigrant Petition for Alien Worker, Form I-140, filed by the prospective employer. All such workers generally require labor certification approved by the Department of Labor. Skilled Workers, Professionals, and Unskilled Workers (Other Workers) receive 28.6 percent of the yearly worldwide limit of employment-based immigrant visas, plus any unused visas from the Employment First Preference and Second Preference categories.

There are three subgroups within this category:

• Skilled workers are persons whose jobs require a minimum of 2 years training or work experience that are not temporary or seasonal.
• Professionals are members of the professions whose jobs require at least a baccalaureate degree from a U.S. university or college or its foreign equivalent degree.
• Unskilled workers (Other workers) are persons capable of filling positions that require less than two years training or experience that are not temporary or seasonal.

Employment Fourth Preference (EB4): Certain Special Immigrants

A Fourth Preference applicant must be the beneficiary of an approved Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360, with the exception of Certain Employees or Former Employees of the U.S. Government Abroad (see number 3 below). Labor certification is not needed for any of the Certain Special Immigrants subgroups. Special Immigrants receive 7.1 percent of the yearly worldwide limit of employment-based immigrant visas.

There are many subgroups within this category. A few of the most common are provided below:

• Broadcasters in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization
• Ministers of Religion
• Certain Employees or Former Employees of the U.S. Government Abroad – Must use Form DS-1884, Petition to Classify Special Immigrant Under INA 203(b)(4) As an Employee or Former Employee of the U.S. Government Abroad
• Certain Religious Workers

Employment Fifth Preference (EB5): Immigrant Investors

Immigrant Investor visa categories are for capital investment by foreign investors in new commercial enterprises in the United States which supply job creation.