Employment-Based Immigration
Some people are eligible to obtain visas to enter the United States based on the possibility of working here. There are two main categories of employment-based visas: immigrant visas and non-immigrant visas. Immigrant visas are those that allow someone to remain permanently in the U.S. (i.e., obtain a green card), while non-immigrant visas only allow someone to enter the U.S. for a specified period of time.
Some individuals who enter the U.S. on a non-immigrant visa may later be able to adjust to an immigrant visa to remain in the U.S. permanently.
Some individuals who enter the U.S. on a non-immigrant visa may later be able to adjust to an immigrant visa to remain in the U.S. permanently.
Immigrant Visas
Each year, about 140,000 employment-based immigrant visas are available to qualified individuals. A three step process is typically followed to obtain one of these employment-based visas:
Depending on the employment category of the alien, slight variations to this process may occur. A brief description of each of the employment-based immigrant visas can be found below.
Priority Workers (E1)
Three subgroups exist within this category:
A labor certification is not required for this category.
Professionals Holding Advanced Degrees & Persons of Exceptional Ability (E2)
Two subgroups exist within this category:
A labor certification may be required for this category.
Skilled Workers, Professionals, and Unskilled Workers (E3)
Three subgroups exist within this category:
A labor certification may be required for this category.
Certain Special Immigrants (E4)
Many specialty sub-groups exist in this category, including broadcasters, religious workers, and physicians. More detail can be found on the Department of State's website.
Immigrant Investors (E5)
Immigrant investor visa categories are for foreign investors who want to invest capital in new commercial enterprises in the United States that provide job creation.
To qualify as an immigrant investor, a foreign national must invest, without borrowing, the following minimum qualifying capital dollar amounts in a qualifying commercial enterprise:
A qualifying investment must, within two years, create full-time jobs for at least 10 U.S. citizens, lawful permanent residents, or other immigrants authorized to work in the United States, not including the investor and the investor’s spouse, sons, or daughters.
Immigrant investor visa categories are:
More information on this category can be found on the Department of State's website.
For more detailed information on any of the employment-based immigrant visas, please contact one of our attorneys.
- Employer obtains a labor certification from the U.S.Department of Labor (only necessary for some categories)
- Employer files an immigrant petition with the U.S. Citizenship and Immigration Services (in some cases, the alien may file himself)
- Alien files an application to adjust status with the U.S. Citizenship and Immigration Services OR files a visa application with the U.S. Department of State
Depending on the employment category of the alien, slight variations to this process may occur. A brief description of each of the employment-based immigrant visas can be found below.
Priority Workers (E1)
Three subgroups exist within this category:
- Persons with extraordinary ability - intended for alien's who are at the top of their particular field in science, art, education, business, or athletics (e.g., Nobel Prize winners)
- Outstanding professors and researchers - intended for professors or researchers with an outstanding international reputation
- Multinational mangers or executives - intended for those seeking to fill a managerial or executive role in a U.S. company
A labor certification is not required for this category.
Professionals Holding Advanced Degrees & Persons of Exceptional Ability (E2)
Two subgroups exist within this category:
- Professionals holding an advanced degree
- Persons with exceptional ability - intended for people with a degree of expertise significantly above that encountered in the sciences, art, or business
A labor certification may be required for this category.
Skilled Workers, Professionals, and Unskilled Workers (E3)
Three subgroups exist within this category:
- Skilled workers - intended for individuals in jobs that require a minimum of two years of training of experience
- Professionals - intended for members of a profession whose job requires at least a college degree
- Unskilled workers - intended for individuals in jobs that require less than two years of training or experience
A labor certification may be required for this category.
Certain Special Immigrants (E4)
Many specialty sub-groups exist in this category, including broadcasters, religious workers, and physicians. More detail can be found on the Department of State's website.
Immigrant Investors (E5)
Immigrant investor visa categories are for foreign investors who want to invest capital in new commercial enterprises in the United States that provide job creation.
To qualify as an immigrant investor, a foreign national must invest, without borrowing, the following minimum qualifying capital dollar amounts in a qualifying commercial enterprise:
- $1,000,000 (U.S.); or
- $500,000 (U.S.) in a high-unemployment or rural area, considered a targeted employment area.
A qualifying investment must, within two years, create full-time jobs for at least 10 U.S. citizens, lawful permanent residents, or other immigrants authorized to work in the United States, not including the investor and the investor’s spouse, sons, or daughters.
Immigrant investor visa categories are:
- Employment creation outside a targeted area – C5
- Employment creation in a targeted rural/high unemployment area – T5
- Investor Pilot Program not in a targeted area – R5
- Investor Pilot Program in a targeted area – I5
More information on this category can be found on the Department of State's website.
For more detailed information on any of the employment-based immigrant visas, please contact one of our attorneys.
Non-Immigrant Visas
Non-immigrant employment visas allow individuals to enter the U.S. for a specified period of time. One of the most common categories is known as the "H1B."
H1B
The H1B program allows employers to hire foreign nationals to work in the U.S. in a "specialty occupation," defined below. An H1B visa can be held by an individual for up to three years at a time, though typically someone can only keep an H1B status for a total of six years throughout their life. H1B recipients may later become permanent residents of the U.S. (i.e., obtain a green card) by going through the immigrant visa application process discussed above.
Specialty occupation
To qualify as a specialty occupation, the position must meet one of the following requirements:
Specialty occupations typically include physicians, engineers, accountants, computer programers, and professors, among others. The specific job must be measured against the specialty occupation criteria.
Annual cap
Each year the U.S. government issues H1B visas until it reaches a specified maximum yearly amount, or cap. The current annual cap is 65,000 visas, though almost 7,000 of these are set aside for certain nationals of Chile and Singapore. Once the visa cap is reached for a certain year, potential H1B-recipients must wait until the next fiscal year to apply for this visa.
Several employment opportunities are not subject to this cap, however, and may be applied for at any time. This includes employment with some universities and non-profits. The first 20,000 individuals with advanced-degrees are also not subject to the cap.
Our attorneys can help answer any questions you have about the H1B application process, whether you are interested as an employer or as a potential employee.
H1B
The H1B program allows employers to hire foreign nationals to work in the U.S. in a "specialty occupation," defined below. An H1B visa can be held by an individual for up to three years at a time, though typically someone can only keep an H1B status for a total of six years throughout their life. H1B recipients may later become permanent residents of the U.S. (i.e., obtain a green card) by going through the immigrant visa application process discussed above.
Specialty occupation
To qualify as a specialty occupation, the position must meet one of the following requirements:
- A bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree
Specialty occupations typically include physicians, engineers, accountants, computer programers, and professors, among others. The specific job must be measured against the specialty occupation criteria.
Annual cap
Each year the U.S. government issues H1B visas until it reaches a specified maximum yearly amount, or cap. The current annual cap is 65,000 visas, though almost 7,000 of these are set aside for certain nationals of Chile and Singapore. Once the visa cap is reached for a certain year, potential H1B-recipients must wait until the next fiscal year to apply for this visa.
Several employment opportunities are not subject to this cap, however, and may be applied for at any time. This includes employment with some universities and non-profits. The first 20,000 individuals with advanced-degrees are also not subject to the cap.
Our attorneys can help answer any questions you have about the H1B application process, whether you are interested as an employer or as a potential employee.
