EMPLOYMENT-BASED IMMIGRATION

Are you interested in visiting the United States for business? If so, you need to obtain a temporary visitor for a business visa, unless you qualify for admission without  a visa under the Visa Waiver Program.

Talk to one of our Business Immigration Attorneys today!

If you have no family to be able to sponsor you (or it would take too long) your next option is to have an employer sponsor you. How easily you can get employment-based status depends, quite simply, on how your work will benefit the United States. The more specialized the work, the more education required, the more options you will have.

Employment-based immigration may be either temporary or permanent. In other words, your job either has an expiration date or it doesn’t. The law calls all people who are coming to the US temporarily “nonimmigrants.” Not coincidentally, all people who are coming to the US permanently are called “immigrants.” The only “permanent” status is a green card, but there are several different temporary (nonimmigrant) statuses that you might qualify for. This is different from family-based immigration, which is nearly always only permanent in nature. Let’s look at these two categories.

Nonimmigrant Employment-Based Visas. The most common include the following:

• • H visas
    • • H-1B – the professional “specialty occupation” visa
    • • H-2A – (seasonal) agricultural workers
    • • H-2B – other temporary workers
    • • H-3 – trainees

• • L – intra-company transfers

• • R – religious workers

Of all the nonimmigrant visas listed above, none is perhaps more coveted, common and confusing as the H-1B. Note also that we have not included some of the other common nonimmigrant visas (e.g., B-1/B-2, E-1, E-2, F-1, J-1, and M-1 visas) because strictly speaking, these are not “employment based” visas – you don’t get them by finding a US employer to sponsor you.

For each one of the nonimmigrant employment-based visas listed above, you will need a US employer to sponsor you. “Sponsoring” is actually known as “petitioning” in this case. All petitioning is done on USCIS Form I-129, but there are different attached schedules for each visa. Generally your employer must be able (if asked) to show that it has the ability to pay you an acceptable salary for your position, which must be in line with salaries for your job in your location in the United States. This is called the “prevailing wage.” We regularly research and obtain prevailing wage data for our clients.

For H visas, it is also necessary to obtain some form of certification from the US Department of Labor (DOL.) In the summer of 2009, DOL unveiled a new system known as iCert which is supposed to be a one-stop shop for all DOL immigration-related filings. It hasn’t quite lived up to that standard, but we are hopeful for improvement. The point is – for many employment-based filings that require iCert, it will likely take longer to prepare and file a petition than it did before, so you would be well advised to contact your lawyer earlier. You usually cannot file with USCIS until you have completed the DOL filings, and USCIS will not care that you were unable to do so on time.

R visas merit special discussion. According to CIS, the religious worker visa category was plagued by rampant fraud to the point that the regulations were overhauled in November 2008. Now, all religious workers must be petitioned for by a US entity. The evidence required is very strict – and may include a site visit by CIS personnel to make sure the religious entity really exists and is operating as such.

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Permanent Employment-Based Immigration. In order to get a green card based on employment, you have to go through a three step process. Briefly:
1) employer files labor certification with DOL, and upon approval
2) employer files immigrant petition with USCIS, and (sometimes simultaneously, other times years later)
3) the foreign national files a green card application.

The first step is obtaining permanent labor certification from the DOL. This process is known as “PERM” (which actually stands for program electronic review management). This is a relatively new system that has been in place since March 2005. It allows employers to create an account online with DOL and prepare their labor certification applications for their sponsored employees. However, there are very detailed pre-filing steps that the employer (usually through the attorney) has to go through in order to file. The point of this step is to obtain a certification from the US DOL that there are no able and willing qualified Americans who could take the job the employer is trying to fill.

At our firm, we begin each case by doing research. A lot of research. DOL and USCIS don’t necessarily speak the same language. They sometimes view jobs differently, which means two jobs you might think are basically the same will be entitled to different immigration benefits. So the entire process has to be planned out from the beginning. Just because you get a labor certification doesn’t mean USCIS will grant you a green card.

We research the same databases consulted by the government and obtain an idea of how DOL (and later USCIS) will classify the job. If it doesn’t quite fit, we do what we can to make it fit. We work with the employer to draft advertisements in the required places that comply with PERM requirements in 20 C.F.R. §656. And then we place the advertisements. The steps required for advertising are very detailed and vary depending on the type of position. For professional positions (ie, those requiring a bachelor’s degree as a minimum) for example, there must be a 30-day job order filed with the state workforce agency (the “SWA”), there usually must be notice of the proposed employment posted in a conspicuous location at the employer’s premises for 10 days, there must be at least one Sunday ad that runs in a newspaper of major circulation in the job site’s area, a trade journal ad, and then three additional steps that might include radio/tv ads, local and ethnic newspaper ads, the employer’s website, an employee referral program, a job placement firm, or a job search website, among others. Choosing the right venues for advertising is part of the process.

One the ads have run, there is a 30 day “waiting” period to allow potential candidates to apply for the job. All responses to all ads must be carefully documented, and in the event of a DOL audit, will be asked for. This so-called “recruitment report” must show that there were no qualified applicants willing to take the job. After the waiting period, the PERM application (known officially as Form ETA 9089) is filed and submitted online. Processing times currently vary between 6 to 8 months, and of course much longer if there is an audit. We draft applications very carefully to minimize the chance of an audit, but it is impossible to guarantee against it.

After the labor certification is approved, the second step is the I-140 petition, and the third is the I-485 green card application.  Whether these two steps can happen at the same time or not depends on whether a visa number is available.  Like family-based green cards, employment-based green cards are controlled by quotas.  There’s a worldwide number and a per country number. The quotas are also broken up into different preference categories which vary depending on what type of background is required to perform the job. The preference categories are: (EB stands for “employment based”:

EB-1: Multinational executives, outstanding researchers, and aliens of extraordinary ability
EB-2: Jobs requiring a master’s degree (MA) or a bachelor’s degree (BA) + 5 years experience
EB-3: Jobs requiring a bachelor’s degree (category 1)
         Jobs requiring 2 years experience (category 2; skilled worker)
         Unskilled workers (category 3)
EB-4: Certain special immigrations (various categories)
EB-5: Employment creation (you get a green card because you start/run a business that employs American workers)

The Department of State’s monthly visa bulletin shows where the numbers are.  If there’s a “C” in your category, your employer’s petition and your application can be filed simultaneously.  If not, you have to wait until your priority date is reached.  In employment based cases, the priority date is the date the labor certification (from step 1, above) was filed.

Employment based immigration is complex.  Because of the involvement of another federal agency – the Department of Labor – it requires mastery of several concepts in order to work.  Besides prevailing wage determinations, the lawyer must look at the job’s requirements, analyze them to see if they are normal or otherwise justified by business necessity, compare them with existing occupations on databases such as O*Net and ensure that the SVP (specific vocational preparation) range is appropriate for inclusion in EB-2 or EB-3, etc.  After the labor certification is approved, the analysis shifts toward the employer’s ability to pay the prevailing wage.

Because the stakes are high, frequently involving the employer, employee and the employee’s family, a competent attorney can be a real help when securing the right to live and work in the United States.