Employment Based Cases
U.S. immigration law is consciously designed to serve the interests of both employers and workers. There are many avenues through which employers can petition for foreign-born employees. Our immigration laws protect U.S. workers by restricting employment-based immigration to persons whose skills and expertise are otherwise unavailable in the domestic workforce.
A person seeking to permanently enter the U.S. workforce through employer sponsorship is not admissible unless the Department of Labor certifies that he or she will not displace nor adversely affect the wages and working conditions of U.S. workers who are similarly employed. The employer must file an application with DOL establishing that both of these criteria have been met.
Employment Visas/Labor Certification
Companies that need qualified workers, but are unable to find enough U.S. workers to fill those positions, can use the labor certification process to sponsor workers from other countries. In most cases, these workers have specific medical skills, technical ability and bilingual experience and work in occupations like engineering, medicine, teaching, computer science or research.
It is critical that each application is meticulously prepared, all deadlines are met, all references are verified, data is exact and everything documented is in accordance with all current laws. The types of immigration law work employees and employers may require can include, but is not limited to:
- PERM Application
- E-1/E-2 – Treaty Country Investor Visas
- EB1 – National Interest Waiver, Alien Of Extraordinary Ability, Outstanding Professor Or Researcher, Multinational Executive
- EB2 – Member Of Profession Holding An Advanced Degree Or Alien Of Exceptional Ability
- EB3 – Skilled Worker Or Professional
- EB4 – Any Other Worker
- EB5 – Immigrant Investor
- H-2A – Seasonal Worker Visas
- H-2B – Other Seasonal Work Visas
- L-1 – Inter-Company Transferees Visas
H, L, E, Visas
Non-immigrant work visas (H, L, O, P, Q) require a CIS-approved petition from a U.S. sponsor. Treaty-trader or treaty-investor visas (E1/E2) can be applied for directly by the individual as long as he or she is from a country with which the United States has a treaty.
The most common work-related visas are H-1B Visas and L1 Visas. The H-1B is a way to bring foreign-born professionals to the United States for a period of up to six years. A sponsor is required and the employment may only start up when the new employee is in the United States. The L1- Visa is for people working for an employer abroad for one year in a related business entity in a manager, executive or specialized knowledge staff capacity, and who will come to the United States to continue providing services for his or her employer. Visas can include:
- B1 Temporary visitor for business
- B2 Temporary visitor for pleasure
- B1/B2 Temporary visitor for business or pleasure
- E1 Treaty trader, spouse and children
- E2 Treaty investor, spouse and children
- H1B (petition-based) Temporary worker in a specialty occupation
- H1C (petition-based) Registered nurses
- H2A (petition-based) Temporary worker performing agricultural services unavailable in the United States
- H2B (petition-based) Temporary worker performing non-agricultural services unavailable in the United States H3 (petition-based) Industrial trainee
- H4 (petition-based) Dependent of H1, H2 or H3
- L1 (petition-based) Intra-company transferee (executive, managerial, and specialized personnel continuing employment with an international firm or corporation)
- L2 (petition-based) Dependent of L1
- O1 (petition-based) Aliens with extraordinary ability in sciences, arts, education, business or athletics
- O2 (petition-based) Aliens accompanying and assisting the above in a professional capacity
- O3 (petition-based) Dependent of O1 or O2
- P1 (petition-based) Athletes and entertainers for a specific competition or performance
- P2 (petition-based) Athletes and entertainers participating in reciprocal exchange program
- P3 (petition-based) Artists and entertainers performing under a program that is culturally unique
- P4 (petition-based) Dependent of P1, P2 or P3
- Q (petition-based) International cultural exchange visitor
When the North American Free Trade Agreement (NAFTA) was implemented on January 1, 1994, a category for Mexican and Canadian professionals was created to allow for temporary entry into the United States.
Under the NAFTA, Mexican and Canadian professionals are now eligible for Trade NAFTA (TN) status. Under TN status, Mexican and Canadian citizens in certain professions may enter the United States to work for a U.S. company on a temporary basis. Eligible professionals may also work for Mexican and Canadian companies in the United States.
In order to qualify for TN status, the applicant must be intending to be involved in a profession listed in Appendix 1603.D.1 of NAFTA and the applicant must possess the required credentials to be considered a “professional”. In most, but not all of the listed professions, a bachelor’s degree or better is usually required. However, the list of eligible professions also includes occupations which do not necessarily require a bachelor’s degree as a minimum requirement. Examples of these occupations are management consultants, hotel managers, librarians and graphic designers. The requirements for each of these categories appear in Appendix 1603.D.l of NAFTA.