Employment-based Immigration

Montavon McKillip Law is an immigration law firm in California that helps employees and employers with their employment-based immigration needs. Attorney Andrea Montavon-McKillip will help you get the best outcome for your situation. 

Permanent Residence through Employment

The United States has always benefited by keeping a door open for immigrant talent and workers. In fact, research shows that almost half of Fortune 500 companies were founded by immigrants or their children – companies like Apple, Google, Amazon, and Costco.

However, the mixture of employment-based immigration options can be complicated, and depend on whether you seek to come to the United States to work temporarily or permanently, your type of employment, and your level of skill, among other factors.

If you are looking to earn a green card through employment, or you are an employer looking to sponsor a valuable employee for their green card, then you will want to explore the options for permanent residence through employment.

Employment-based (EB) residency applications are broken down by category and assigned certain preferences, which determine whether there is an immigrant visa immediately available. The categories have to do with the immigrant worker’s level of skill, education, experience, and talent. In most cases, the visa category requires a job offer from the U.S. employer, and the U.S. employer files the immigrant petition as the immigrant employee’s sponsor. Employment-based immigration is divided into the following processes and categories: 

The Department of Labor (DOL) issues labor certification (PERM) to employers who want to hire foreign workers permanently in the United States. The PERM process is designed to test the labor market and only permits labor certification when there are not sufficient U.S. employees available for the position such that the immigrant worker will not displace a U.S. worker. Labor certification is required in most EB-2 and EB-3 categories.

Labor certification is not required for first preference workers.

EB-1A Extraordinary Ability – For individuals who have reached the top of their field in the sciences, arts, education, business, or athletics. A job offer is not required.

EB-1B Outstanding Professor or Researcher – The EB-1B visa is the way for professors and researchers with international renown in their specific academic area to get a green card.

EB-1C Multinational Executive or Manager – If you are an executive or manager with a multi-national company and have been employed abroad by an affiliate for at least one year of the past three, you may be eligible to pursue an employment-based green card through the EB-1C category.j

The EB-2 category requires a job offer and labor certifcation, except as described further below. EB-2 candidates must also be able to show a substantial prospective benefit to the United States. 

Advanced Degree – This category is for those workers with an advanced degree, such as a Master’s or PhD, or the equivalent. A job offer and labor certification are required except as described below.

Exceptional Ability – This category is for workers who can demonstrate exceptional ability – expertise significantly above that ordinarily encountered – in the sciences, arts (including some athletes), or business. A job offer and labor certification are required except as described below.

National Interest Waiver (NIW) – A job offer and labor certification can be “waived” in the EB-2 category if it is in the national interest. 

Physician’s National Interest Waiver (PNIW) – Foreign-educated physicians can seek a green card with a National Interest Waiver by working in underserved areas.

“Schedule A” Workers – Schedule A is a list of occupations for which the U.S. Department of Labor has found there are not enough qualified and available workers in the United States. Foreign workers can obtain a green card without having to test the labor market through the U.S. Department of Labor PERM process.

A job offer and labor certification is always required, unless a Schedule A occupation.

Professionals – Professionals with at least a bachelor’s degree or the foreign equivalent.

Skilled Workers – Employees in positions requiring at least two years training or work experience.

Other Workers – Those foreign workers in positions requiring less than two years training or work experience.

Religious Workers – Foreign ministers and a limited number of non-ministers in religious vocations seeking to enter to work in a full-time, paid position in a religious vocation or occupation at a bona fide, non-profit religious organization in the U.S.

Special Immigrants – This category encompasses a variety of less common categories of employment, including:

  • Iraqi and Afghan Translators and Interpreters for U.S. Armed Forces; Iraqis/Afghans Providing Service to U.S.
  • U.S. government employees working abroad
  • Panama Canal Zone employees
  • G-4 employees of international organizations
  • NATO civilian employees
  • Certain Broadcasters

Special immigrant juveniles fall under the EB-4 category but are not based on employment and are discussed here

Eligible investors wanting to attain a green card (permanent residence) can do so if they:

  • Fulfill the necessary level of investment in a commercial enterprise within the United States; and
  • Have the intention of creating or assigning ten permanent full-time jobs for qualified American workers.

Temporary Worker Visas

There are several categories of non-immigrant temporary work visas available. These visas allow the holder to enter the U.S. in a non-immigrant status, and live and work for a specified period of time in the United States before returning to their home country.

E-1 and E-2 visas are available for traders and investors from countries with which the United States has a specific treaty. The list of treaty countries is available here. The two types of E visas are as follows:

  • A treaty trader (E-1) must be coming to the U.S. solely to carry on substantial trade, including trade in services or technology, between the U.S. and the country of the treaty trader.
  • A treaty investor (E-2) must be coming to the U.S. solely to direct and develop the operations of an enterprise in which he or she has invested, or is actively in the process of investing, a substantial amount of capital. There is no specific amount of investment required under the law; instead, the investment must be proportional to the value of the business.

E-3 visas are specialty occupation visas for Australian nationals, similar to H-1Bs but with different qualifications and benefits.

The H-1B is the specialty occupation visa for professionals workers with a job offer for a position that requires a bachelor’s degree or higher or equivalent work experience. There is a limit on the number of new H-1B visas that can be issued every year, so it is important to contact an immigration attorney to discuss the time frame of your application. H-1B1 visas are “fast-track” visas for professionals from Chile and Singapore.

H-2A and H-2B visas are for foreign workers performing seasonal or temporary work in agricultural (H-2A) or non-agricultural (H-2B) industries. 

The H-3 visa is for citizens who want to receive training within the United States in any field, with a few exceptions.

L-1 visas are designed for intra-company transferees who have worked in their home country for at least one continuous year of the past three years for a company that is affiliated with the U.S. employer.

L-1A visas are for managerial and executive employees, and L-1B visas are for employees with specialized knowledge of the employer’s products or services.

O-1A visas are for persons of extraordinary ability in the sciences, education, business or athletics with demonstrated sustained national or international acclaim.

O-1B visas are specifically for persons of extraordinary ability in the arts or of extraordinary achievement in motion picture or TV productions.

O-2 visas are for those who seek to enter to assist O-1 artists or athletes for specific events, such as trainers or back-up singers, and whose participation is essential to the event or production.

P visas are designed for professional athletes, entertainers, and artists coming to the U.S. to work in their field individually or as part of a group or team.

P-1 visas are for professional athletes coming to the U.S. to perform in a specific athletic competition in their sport individually or as part of a team at an internationally recognized level of performance.

P-2 visas are for artists and entertainers coming to the U.S. to perform under a reciprocal exchange program existing between a U.S. organization and an organization in another country.

P-3 visas are for artists or entertainers coming to the U.S. to perform, teach, or coach under a culturally unique program.

The nonimmigrant NAFTA Professional (TN) status permits citizens of Mexico and Canada to work in the United States under prearranged business activities for U.S. or foreign employers as designated NAFTA professionals.

At Montavon McKillip, we understand the complexities surrounding employment-based immigration processes. With an experienced attorney, our firm can help you navigate the process of obtaining visas for yourself or your employees. Contact Andrea Montavon-McKillip today for a consultation!