Employment Based Immigration
Employers have several limited ways to bring foreign workers into the U.S. on a temporary or permanent basis. Employment-based immigration visa categories generally have limited and static numerical caps. In addition, before petitioning for a foreign worker, an employer is often required to obtain certification from the Department of Labor (DOL) which has specific requirements in and of itself.
Temporary Employment Visas
Temporary employment visas allow employers to hire foreign nationals to work in a specific job for a limited time period. Depending on the visa classification and, in some cases, the nationality of the intended employee, the employer may be required to file, as a first step, a petition for a nonimmigrant worker with U.S. Citizenship and Immigration Services (USCIS). If approved, a State Department consular officer then determines the foreign worker’s eligibility for a nonimmigrant visa. Once the visa has been issued, the worker may travel to the United States to assume employment with the petitioning employer.
See the below reference chart for a better overview:
|H-1B||H-2A||H-2B||L-1A & B|
|Who Is Eligible?||Highly educated foreign professionals in “specialty occupations” that require a bachelor’s level degree or equivalent Training.||Temporary Agricultural Workers.||Seasonal non-agricultural temporary workers.||An alien employed by an employer abroad for at least one year in a capacity that is managerial, executive or requires specialized knowledge and whose services are being sought in one of those capacities by the same employer in the U.S.A.|
|How many per year?||65,000 per year, plus 20,000 more for foreign professionals with a Masters or Doctoral degree from a U.S. university.||No annual limit.||66,000 per year.||No annual limit.|
|For how long?||Three years, with a renewal for up to six years total.||Up to one yea, can be renewed for up to three years.||Up to one year, and may be renewed twice for a total of up to three years.||One year if establishing a new office, otherwise for three years.|
|Permanent employment visa eligible||H-1B visa holders may be sponsored for permanent visas by their employers.||H-2A workers cannot be sponsored for permanent visas for the same job by their employers||H-2B workers cannot be sponsored for permanent visas for the same job by their employers||L visa holders may be sponsored for permanent visas by their employers.|
|Need labor certification?||No, but the employer must attest on a labor condition application (LCA) certified by the Dept. of Labor that the employment of such worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.||Yes, the Dept. of Labor must certify there is no qualified U.S. worker who can fill the position.||Yes, the Dept. of Labor must certify there is no qualified U.S. worker who can fill the position.||No|
|May they bring spouses and children?||Yes, spouses and children under 21 may enter but may not work||Yes, spouses and children under 21 may enter but may not work||Yes, spouses and children under 21 may enter but may not work||Yes Spouses and children under 21 may enter and are allowed to work|
Permanent Employment Visas
A permanent employment visa allows a foreign national to work and live lawfully and permanently in the United States. Lawful permanent residents are subject to fewer restrictions than temporary workers (non-immigrants), and generally may apply for U.S. citizenship. In most cases, the individual’s employer must file a petition with USCIS. If the individual is already in the U.S. on a temporary visa, he or she may apply for “adjustment of status” to permanent residence after USCIS approves the employer’s petition.
Because of numerical and per-country limits (detailed below), some individuals must wait a significant period of time to apply for adjustment of status or an immigrant visa even after the petition is approved by USCIS. The Department of State issues a monthly visa bulletin, summarizing the availability of visa numbers for each preference category on a per-country basis. While some visas are “current,” allowing the individual to immediately apply for permanent residence, other categories are considerably backlogged, requiring the applicant to wait years.
See the below reference chart for a better overview:
Permanent Employment-Based Preference System
|Preference Category||Eligibility||Yearly Numerical Limit|
|1 Priority Workers||“Persons of extraordinary ability” in the arts, science, education, business or athletics; outstanding professors and researchers, multinational managers and executives.||40,000 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 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, or “other” workers for unskilled labor that is not temporary or seasonal.||40,000 or 28.6%|
|4 Certain Special Immigrants||Certain, “special immigrants” including religious workers, employees of the U.S., foreign service posts, translators, former U.S. government employees and other classes of aliens||10,000 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||10,000 or 7.1%|
In addition to family and employment based immigration there is a variety of petitions that can be filed on humanitarian grounds.