Employment Immigration


Employment-based Immigration

Employment-based immigration allows individuals to enter and work in the United States.  In almost all cases, an immigrant must be sponsored by a U.S. employer.  However, there are a few exceptions for certain individuals.  Some employment-based immigration options provide for temporary work visas, while other options allow for permanent residency within the United States.  The following is a brief overview of the more common options available.

To learn what specific immigration options are available to you, please contact an Albany employment-based immigration lawyer.

Temporary Non-Immigrant Visas

Non-immigrant visas allow individuals to work in the United States for defined, temporary periods. The numerous visa types provide options for almost all types of workers, including physicians, nurses, professors, actors, artists, athletes, professionals, and business people. The following are the more common non-immigrant work visas.

H-1B Specialty Occupations

The H-1B Visa allows qualifying foreign nationals to work for up to six years in specialty occupations within the United States. Recipients of the visa must possess a U.S. Bachelor’s degree, or its equivalent.

L-1 Intra-Company Transfers

The L-1 Visa allows international businesses to transfer certain workers to the United States. The workers must have already worked for the company (or its affiliates) while outside of the United States and must work in a capacity that is primarily executive, managerial or involves specialized knowledge.

O-1 Extraordinary Ability

The O-1 Visa is an option available to foreign nationals who possess extraordinary abilities in science, education, business, athletics, arts or in motion picture and television productions. The O-1 Visa does not require a labor certification.

B-1 – Temporary Visitor for Business

The B-1 Visa allows foreign nationals to visit the United States and engage in business-related activities. This classification does not allow foreign nationals to be employed within the United States by American employers.

Permanent Employment-based Immigration

Employment-based immigrants are authorized to permanently live and work in the United States as permanent residents. In certain circumstances individuals are able to sponsor themselves, while in other circumstances employers are required to sponsor the immigrant. Options for employment-based immigration to the United States are generally divided into five preference categories.

First Preference: EB-1 Priority Workers

The first preference category is reserved for priority workers and is divided into three distinct subcategories. This preference category is preferable to the other categories as it does not require a labor certification. Additionally, a priority worker may be able to self-sponsor his or her application and may not need an offer of employment.

Workers with Extraordinary Abilities

Foreign nationals who possess extraordinary abilities in the sciences, arts, education, business or athletics are eligible for this subcategory of the EB-1 preference category. Qualifying foreign nationals can self-sponsor their applications and do not need an offer of employment. Foreign nationals must be able to demonstrate their extraordinary abilities based upon the government’s criteria, and must continue to work in their field of expertise when they arrive in the United States.

Outstanding Professor or Researcher

Outstanding professors and researchers may obtain this immigration status if they are entering the United States to either teach or perform research at an university, an institution of higher education, or through certain private employers. Applicants for this subcategory must be sponsored by an employer.

Multinational Executive or Manager

Multinational executives and managers who are seeking to transfer to the United States are eligible for this subcategory of the EB-1 preference category. Qualifying foreign nationals must have worked outside of the United States for a company that is the parent, subsidiary or affiliate of the sponsoring United States employer. This subcategory is similar to the L-1 non-immigrant visa category, but also has distinct differences.

Second Preference: EB-2 Professionals with Advanced Degrees or Exceptional Ability

The second preference category is reserved for foreign national professionals who possess an advanced degree or foreign nationals who have exceptional abilities in the sciences, arts or business. The government has established criteria to determine “exceptional abilities.” Aside from a few exceptions, the EB-2 requires applicants to complete a labor certification. A national interest waiver is one such exception and can be obtained by those individuals who can demonstrate that their immigration will be in the national interest.

Third Preference: EB-3 Skilled or Professional Workers

The EB-3 is the third preference category and is open to foreign nationals who are skilled workers with at least two years of training or experience, professionals with a bachelor’s degree, and other workers.

Fourth Preference: EB-4 Special Immigrants

The EB-4 immigrant status is the fourth preference category and is reserved for special immigrants, including religious workers and officers of international organizations. Religious workers include religious leaders and individuals with religious vocations or occupations.

Fifth Preference: EB-5 Investor Immigrants

EB-5 investor status creates permanent residency for investors who demonstrate that they have made, or will make, a substantial investment in an American business that creates American jobs.

Investors must demonstrate that they have invested, or are actively investing, into a new commercial enterprise. The investment amount must be at least $1 million in most locations, or $500,000 in targeted employment areas. Targeted employment areas are areas designated by the government that have high unemployment rates or are rural areas within the United States. Additionally, the investor must demonstrate that the investment business will benefit the United States economy and will create at least ten full-time positions for American workers. These requirements may differ sightly based upon unique circumstances and additional requirements may exist.

EB-5 status affords conditional permanent residency status to the investor, his or her spouse, and any unmarried children under the age of twenty-one. After two years of conditional permanent residency the investor can petition for removal of the conditions of residency. Afterwards, the investor will have permanent residency that is renewable every ten years.

Each year ten thousand visas are available for EB-5 investors.