JOBS AND VISA REQUIREMENT IN USA

There are 5 categories for obtaining a permanent visa through work.  For most categories you must have a job offer to apply, while in some limited situations you do not.  In either case, you must have the correct background, in terms of education, training, and/or experience, for the work you will be doing in the U.S.  The 5 employment-based categories and the process for obtaining a green card are briefly explained below.The 5 categories and their subcategories are:

(a) 1st preference (priority workers)

(1) persons of extraordinary ability in the sciences, arts, education, business or athletics as demonstrated by sustained national or international recognition;

(2) outstanding professors and researchers who have been recognized internationally as outstanding in a specific academic area and have 3 years experience in teaching or research in the academic area; or

(3) multinational executives and managers who have been employed for at least 1 year during the last 3 years by the sponsoring employer;

(b) 2nd preference

(1) advanced degree professionals (e.g., architects, engineers, lawyers,  physicians, or other professionals with any degree above a bachelor’s degree or its foreign equivalent, such as a master’s degree or a doctorate); or

(2) individuals of exceptional ability whose work will substantially benefit the U.S. economy, or the cultural or educational interests or welfare of the U.S.

(c) 3rd preference

(1)   skilled workers performing a job that requires at least 2 years of training or experience;

(2)   professionals performing a job in a field that requires at least a bachelor’s degree or its foreign equivalent; and

(3)   other workers performing unskilled jobs (certain unskilled jobs, such as janitors, gas station attendants, taxicab drivers, or truck drivers do not qualify for an employment-based visa; jobs ineligible for visas are listed on the U.S. Department of Labor’s Schedule B)

(d) 4th preference (special immigrants, including religious workers and others); and

(e) 5th preference (investors willing to invest $1,000,000 (or $500,000 under certain circumstances)).

 

Applying for an employment-based permanent visa is a multi-step process.  If you fall into the 2nd or 3rd preference categories, the first step is to file a Labor Certification with the U.S. Department of Labor.  The Labor Certification shows that your sponsoring employer has been unable to find a qualified American worker available and willing to perform the job offered you.  In some circumstances, you do not need a Labor Certification if you fall into the 2nd preference category and (a) your work would be in the national interest or (b) your position is listed on the Department of Labor’s Schedule A.  Schedule A lists occupations for which there is a recognized shortage of workers.  These occupations include physical therapists, professional nurses, and persons of exceptional ability in the sciences or arts and university teachers.  Applicants in the 1st, 4th, and 5th preference categories do not need to have a Labor Certification.  

 

The next step is the filing of Form I-140 (Immigrant Petition for Alien Worker) and supporting documentation.  Special immigrant religious workers in the 4th preference category begin the process by filing Form I-360 (Petition for Amerasian, Widow, or Special Immigrant) and supporting documentation.  Investors in the 5th preference category must first file Form I-526 (Immigrant Petition by Alien Entrepreneur) and supporting documentation.

 

After your petition is approved, the final step is applying for your permanent visa.  If you are classified as a 3rd preference other worker, you will have to wait several years before applying for your permanent visa.  If you are in the U.S., you may be eligible to apply for permanent resident status through a process known asadjustment of status
The easiest way to explain how you can live and work in the U.S. is to give a summary of U.S. immigration law.  This is the “big picture.”  Once you see all of the possibilities, it can help you decide which option will work best for you.

U.S. Immigration has two main categories: permanent residence visas (also called “immigrant visas” or “green cards”) and temporary residence visas (also called “nonimmigrant visas”).

1.  Permanent Resident Visas (Green Cards)A permanent resident visa, or green card, is normally what people want, because it permits PERMANENT residence in the U.S.  A person with a green card can generally live anywhere in the U.S. and can work for anyone without restriction.  But, a green card is difficult to get.

There are four main ways to get a green card:

  1. Family sponsored green cards
  2. Employment based green cards
  3. Green card lottery (diversity green card), and
  4. Political Asylum.
To qualify for a family sponsored green card, you must have a very close relative who is a U.S. citizen or permanent resident (green card holder).  Husbands and wives of U.S. citizens, parents of U.S. citizens, and children under the age of 21 of U.S. citizens (including step children) have top priority and can qualify for a green card relatively quickly. 

Other family members, such as husbands and wives of permanent residents, children over the age of 21 of U.S. citizens and permanent residents, and brothers and sisters of U.S. citizens can also qualify for family sponsored green cards.  But, these family members must wait for a green card to be available (there are waiting lists), which can take anywhere from five to 15 years!

Employment based green cards are often the best possibility for our clients.  There are five types:

  • EB-1: for aliens with extraordinary ability, outstanding professors and researchers, or multinational business managers and executives.
  • EB-2: for aliens with exceptional ability or aliens with advanced degrees (employer/sponsor required)
  • EB-3: for professional workers (with university degree), skilled workers and unskilled workers (employer/sponsor required)
  • EB-4: for religious workers
  • EB-5: for aliens who invest $1 million and create 10 new full time jobs (in limited situations, an investment of $500,000 and the creation of 5 new jobs is acceptable).
Processing times for employment based green card vary widely.  An EB-1 or EB-5 application can be approved in less than 1 year.  However, an EB-3 application could take more than 5 years.

The green card lottery (diversity green card) is a government program designed to increase immigration from countries that do not produce a large number of immigrants to the U.S.  Only people born in certain countries can qualify (for example, people born in Canada, Mexico, England, India, China, and the Philippines can not participate).

Each year the government selects 100,000 winners for 50,000-55,000 green cards.  The government assumes that some winners will not qualify.  The time to enter the green card lottery changes every year, but it is usually between October and December.  For more information, see the government’s lottery website: www.dvlottery.state.gov

Our firm does not handle applications for political asylum or refugee status.  However, this is one way to qualify for a green card.  To qualify, an applicant must prove he or she has been persecuted in the past or has a well founded fear of persecution in his or her home country based on race, religion, nationality, political opinion or membership in a particular social group. Asylum applicants may apply for asylum even if he or she entered the U.S. illegally or if he or she is in the U.S. on an expired visa/I-94. Generally, asylum applicants must apply for asylum within one year of their arrival in the U.S. but there are several exceptions which will allow the filing of an asylum application after one year.

2 Temporary VisasMany clients prefer to be in the U.S. before or during a green card application.  Therefore, they first come to the U.S. on a temporary visa.  There are about 30 different kinds of temporary visas.  The most common temporary visas for our law firm are as follows:

  • B-1/B-2 Visitor Visas, which permit a visitor to remain in the U.S. for up to six month (employment is not permitted).
  • E-2 Treaty Investor Visas, which permit investors from certain countries to invest a substantial amount of money and acquire a controlling interest in an active U.S. business.  The visa is issued for up to five years and is renewable.  The investor can work in his or her own business.  The spouse can qualify for an unrestricted temporary work card.  Children up to the age of 21 can accompany the parents and attend school, but cannot work.
  • F-1 Student Visas, which permit foreign students to attend U.S. educational institutions.  Limited employment is permitted in some cases.
  • H-1B Visas for Workers in Specialty Occupations, which permit employment of professional level workers by a sponsoring employer.  The visa is issued for up to three years and can be renewed another three years (additional renewals are possible in some cases).
  • J-1 Visas for Participants in Exchange Programs, which permit business trainees to come to the U.S. to learn about an occupation or profession for up to 18 months.
  • K-1 Visas for a Fiancé(e) of a U.S. citizen.
  • K-3 Visas for a Spouse of a U.S. citizen.
  • L-1 Visas for Multinational Managers, Executives and Specialized Knowledge employees who are being transferred to the U.S. by a related international company.
  • O-1 Visas for Aliens with Extraordinary Ability who are seeking temporary employment.  This visa is issued for up to three years and can be renewed in one year increments.
  • P-1 Visas for Internationally Recognized Entertainment Groups and Athletes.
  • R-1 Visas for Religious Workers who are being transferred to the U.S. by a related international church.
  • TN Visas for certain professional workers from Mexico and Canada.  This visa is issued for one year and can be renewed in one year increments. 
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