Employment-Based Visas

Entering the U.S. through employment can be divided into two categories: non-immigrant and immigrant. A non-immigrant employment-based visa will allow a person to work in the U.S., usually for a limited period of time. An immigrant employment-based visa will allow a person to live and work in the U.S. permanently through acquisition of Permanent Resident Status, or green card. The categories are as follows:

Non-Immigrant Visas

Immigrant Visas

Family-Based Visas

Most people obtain Green Cards (permanent residency) through family members. Two groups of family based immigrant visa categories are immediate relatives and family preference categories.

Immediate Relative Immigrant Visas

These visa types are based on a close family relationship with a United States citizen described as an Immediate Relative (IR). The number of immigrants in these categories is not limited each fiscal year. Immediate relative visa types include:

  • IR-1: Spouse of a U.S. citizen
  • IR-2: Unmarried child under 21 years of age of a U.S. citizen
  • IR-3: Orphan adopted abroad by a U.S. citizen
  • IR-4: Orphan to be adopted in the U.S. by a U.S. citizen
  • IR-5: Parent of a U.S. citizen who is at least 21 years old

Family Preference Immigrant Visas

These visa types are for specific, more distant, family relationships with a U.S. citizen and some specified relationships with a Lawful Permanent Resident (LPR). There are fiscal year numerical limitations on family preference immigrants so normally there is a wait for visa number to become available. Family preference categories include:

  • Family First Preference (F1): Unmarried sons and daughters of U.S. citizens, and their minor children, if any.
  • Family Second Preference (F2): Spouses, minor children, and unmarried sons and daughters (age 21 and over) of LPRs. At least seventy-seven percent of all visas available for this category will go to the spouses and children; the remainder is allocated to unmarried sons and daughters.
  • Family Third Preference (F3): Married sons and daughters of U.S. citizens, and their spouses and minor children.
  • Family Fourth Preference (F4): Brothers and sisters of U.S. citizens, and their spouses and minor children, provided the U.S. citizens are at least 21 years of age.

Please note: Grandparents, aunts, uncles, in-laws, and cousins cannot sponsor a relative for immigration.

Special categories

  • VAWA: Battered spouse or child of U.S. citizen or Green Card holder.
  • K-1 Nonimmigrant (Fiance): Nonimmigrant visa leading to a Green Card after marriage to a U.S. citizen.
  • K-3 Nonimmigrant: Nonimmigrant visa for spouse of U.S. citizen who has an I-130 on file with USCIS.

PERM

An employer may hire a foreign worker to work permanently in the United States by obtaining a permanent labor certification. In most instances, before the U.S. employer can submit an immigration petition (I-140) to the U.S. Citizenship and Immigration Services (USCIS), the employer must obtain a certified labor certification application from the Department of Labor (DOL). The DOL must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. The PERM process must include a lengthy recruitment effort for U.S. workers by the petitioner as follows:

Professional Position

  • Two Sunday newspaper advertisements
  • A job order with the State Workforce Agency
  • At least three of the following recruitment activities:
    • Internet job search posting
    • An ad on the employer's website
    • An internal incentive program
    • Participation in a job fair
    • Ad in a trade journal
    • On-campus recruiting or use of a college placement office
    • Local or ethnic newspapers (in certain instances)
    • Television or radio advertisement
    • Use of a job placement agency

Non Professional Position

  • Two Sunday newspaper advertisements
  • A job order wiht the state Workforce Agency

In addition to the above advertising requirements, there other procedures required by the PERM regulations, namely, that the position be internally posted at the company and the procurement of a Prevailing Wage Determination for the position from the State Workforce Agency. The pre-submission period of a PERM application, including all the recruitment activities generally takes approximately three months, depending on how long the Prevailing Wage Determination is taking. The PERM system has its advantages and disadvantages. If you have questions on your particular case, or wish to consider a PERM application, please contact our office.

EB-5 Green Cards

Individuals can obtain Green Cards through an investment under the EB-5 program, which was created to promote investments in businesses and to create and preserve jobs in the U.S. This allows people to become a lawful permanent resident by establishing a new commercial enterprise that provides full-time employment to at least ten U.S. citizens, legal permanent residents, or other immigrants. Each year, 10,000 EB-5 visas are available to qualified individuals, and of these, 5,000 are set aside for those who apply under the Immigrant Investor Pilot Program involving a Regional Center. A Regional Center is an economic entity, which is involved with the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment. EB-5 investors may obtain permanent resident status either alone or coming with their spouse and unmarried children. Qualified individuals must have invested — or are actively in the process of investing — the required amount of capital into a new commercial enterprise that they have established. They must also demonstrate that this investment will benefit the U.S. economy and create the necessary number of full-time jobs for qualified persons within the U.S.

In general, you may be eligible for EB-5 immigrant visa if you do the following:

1. If you establish a new commercial enterprise that was:

  • Established after Nov. 29, 1990, or
  • Established on or before Nov. 29, 1990, that is:
    • Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
    • Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

2. If you have invested, or are actively in the process of investing, in a new commercial enterprise:

  • at least $500,000 where the investment is being made in a rural area or an area that has experienced unemployment of at least 150 per cent of the national average rate; or
  • at least $1,000,000

3. If your engagement in a new commercial enterprise will benefit the U.S. economy and:

  • create full-time employment for not fewer than 10 qualified individuals (U.S. citizen, permanent resident or other immigrant authorized to work in the U.S.); or
  • maintain the number of existing employees at no less than the pre-investment level for a period of at least 2 years, where the capital investment is being made in a "troubled business," which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.

Representative Experience

  • Represents business leaders in various industries such as biotechnology, life sciences, healthcare, defense, telecommunications, hospitality, restaurants, and many more.
  • Assists scientific institutions including laboratories in obtaining O-1 visas and green cards for top scientists and researchers on the basis of Extraordinary Ability and/or Outstanding Research or National Interest Waivers.
  • Represents small businesses and new enterprises in obtaining L-1 visas for intra-company transfer of executives and employees with specialized knowledge.
  • Provides short-term and long-term solutions for wealthy investors and business owners in EB-5 green card investments or E-1/E2 visas.
  • Represents thousands of individuals and their relatives in family petitions, including cases based on section 245(i) and new immigration policies for undocumented aliens and young people.