Employment Based Visa Categories

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One of the key principles guiding the U.S. immigration system has been admitting foreign workers with skills that are valuable to the U.S. economy. Current U.S. immigration law provides several paths for foreign workers to enter the United States for employment purposes on a temporary or permanent basis. 

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Temporary Employment-Based Classifications

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Pursuant to Section 101(a)(15) of the Immigration and Nationality Act (INA), there are many temporary employment-based visa classifications. The temporary visa classifications are referred to by the letter and numeral that denotes their subsection of the preceding law, i.e. 101(a)(15)(O)(i) for O-1 Visas.

 

Temporary employment-based visa classifications permit employers to hire and petition for foreign nationals for specific jobs for limited periods of time. Most temporary workers have little flexibility and must work for the employer that petitioned for them. If employment is terminated or the visa expires, the individual is required to depart the United States of America.

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At Elsouri Law & Consultants, we offer the following services to U.S. employers who are seeking to petition for Foreign Nationals to work for them temporarily. In each of the listed visas below, the U.S. Employer must petition for a Foreign National who will the beneficiary. 

H-1B Visa

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Who is eligible: ​Certain foreign professionals who are in "speciality occupations." 

Duration: Initially admitted for a period of up to 3 years, may be extended for a maximum of three additional years. 

Employer Requirements: Employer must attest that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. Workers. Employers must also comply with wage requirements. 

May the foreign worker bring spouse and children under 21: Yes, spouses and children under 21 may enter on an H-4 visa, and certain spouses are allowed to apply to work. 

Annual Limit: 65,000 per year, plus 20,000 more for foreign professionals with a U.S. Master's or higher degree.

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L-1A​ Visa

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Who is eligible: ​The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company that does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one. 

Duration: Initially admitted for a period of up to 3 years, may be extended for a maximum of four additional years. 

Employer Requirements: No Requirements as far as adverse impact on U.S. Wages, housing, etc. 

May the foreign worker bring spouse and children under 21: Yes, spouses and children under 21 may enter on an L-2 visa, and spouses are allowed to apply to work. 

Annual Limit: No annual limit. 

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L-1B Visa

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Who is eligible: ​The L-1B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company that does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one. 

Duration: Initially admitted for a period of up to 3 years, may be extended for a maximum of four additional years. 

Employer Requirements: No Requirements as far as adverse impact on U.S. Wages, housing, etc. 

May the foreign worker bring spouse and children under 21: Yes, spouses and children under 21 may enter on an L-2 visa, and spouses are allowed to apply to work. 

Annual Limit: No annual limit. 

O-1A and O-1B Visa

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Who is eligible: ​The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

Evidentiary Requirements: The petitioner must provide evidence demonstrating your extraordinary ability in the sciences, arts, business, education, or athletics, or extraordinary achievement in the motion picture industry.  The record must include at least three different types of documentation corresponding to those listed in the regulations, or comparable evidence in certain circumstances, and the evidence must, as a whole, demonstrate that you meet the relevant standards for classification. 

Duration: Initially admitted for a period of up to 3 years, may be extended in one year increments.

Employer Requirements: No Requirements as far as adverse impact on U.S. Wages, housing, etc. 

May the foreign worker bring spouse and children under 21: Yes, spouses and children under 21 may enter on an O-3 visa, and they are not allowed to work during the duration of your stay. However, they may participate in full or part time study on an O-3 visa. 

Annual Limit: No annual limit. 

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Important note: Depending on whether the foreign national is currently in the United States of America or outside, the subsequent steps may vary. 

 

Permanent Employment-Based Classifications

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Lawful permanent residency allows a foreign national to work and live lawfully and permanently in the United States. Lawful permanent resident's (LPRs) are eligible to apply for nearly all jobs (i.e., jobs not legitimately restricted to U.S. Citizens) and can remain in the country even if they are unemployed. Individuals who have LPR status, may apply for U.S. Citizenship after five years. 

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There are five categories of Permanent worker classifications that you may pursue. Each fiscal year, October 1-September 30, the numerical limit placed on permanent employment based immigration is 140,000, but that figure also includes the principal immigrant's  eligible spouse and children as well, which essentially means that the actual figure is less than 140,000 each fiscal year. Each of the five categories possess a numerical limit. 

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At Elsouri Law & Consultants, we have a wealth of experience in permanent employment-based applications and will be offering services for the following categories:

EB-1: Priority Workers 

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You may be eligible for an employment-based, first-preference visa if you are a noncitizen of extraordinary ability, are an outstanding professor or researcher, or are a certain multinational executive or manager. Additionally, USCIS places a numerical limit of 40,040 on this category. The three sub-categories to qualify for this classification are: 

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1) Individuals with Extraordinary Ability (May Self-Petition); OR,

2) Individuals who are Outstanding Professors and Researchers (Employer Must petition and an offer of employment extended); OR,

3) Individuals who are Multinational Managers or Executives (Employer Must petition and an offer of employment extended)

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EB-2: Professionals with Advanced Degrees or Exceptional Ability with a National Interest Waiver

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You may be eligible for an employment-based, second preference visa if you are a member of the professions holding an advanced degree or its equivalent, or a person who has exceptional ability. Additionally, USCIS places a numerical limit of 40,040 on this category. Normally, this category requires a Department of Labor certification prior to the Employer petitioning for the Foreign National, however certain applicants may qualify for a National Interest Waiver exception that would allow them to circumvent this legal requirement. The legal elements for an EB-2 Visa with an National Interest Waiver are as follows: 

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1) Individuals must possess an advanced degree, OR

• This can be satisfied by showing a Bachelor's degree with evidence to corroborate that you have five years of progressive post-baccalaureate work experience in the specialty. 

2) Show exceptional ability,

• Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

3) Display that the National Interest of the United States would be served if the Labor certification were to be waived

• In order to meet this requirement, you must establish a Proposed Endeavor that meets the following criteria:

  1. The proposed endeavor has both substantial merit and national importance.

  2. You are well positioned to advance the proposed endeavor.

  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

 

Each category whether it is permanent or temporary employment based applications have unique evidentiary requirements and steps. If you would like to learn more about these categories, click the the link below to schedule a free consult with U.S. Immigration Attorney Hassan N. Elsouri. 

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