Fairfax Immigration Attorneys: What You Should Know About Employment-Based Immigration

U.S. Employers may petition for, or “sponsor,” certain employees to become permanent residents. In some cases, immigrants can obtain permanent residence without a third-party employer.

National Interest Waiver

Certain individuals may be eligible for a National Interest Waiver (“NIW”). An NIW means that the US government will issue a green card without the requirement of a job offer and without the lengthy labor certification process.

To qualify, the foreign national must (1) possess the equivalent of a US Master’s degree or higher or (2) prove that he/she is an individual of “exceptional ability.” To show “exceptional ability,” CIS requires documented evidence of at least three of the following:

  • A degree from a college or other institution of learning related to the area of expertise;
  • Evidence of ten years of full-time experience in the occupation;
  • A license or certification to practice the occupation;
  • Evidence of remuneration for services which demonstrates exceptional ability;
  • Evidence of membership in professional associations;
  • Evidence of recognition for achievements and significant contributions to the industry or field by peers, government entities, or professional and business organizations.

In addition to these items, the applicant will need to present evidence to CIS of the “national interest” importance of his/her work or research. That is, the applicant will need to show how his/her work or research advances the interests of the US, such as improving the health of US citizens, improving working conditions, advancing the education of US children, etc.

CIS also now requires evidence of the following in order to support a national interest waiver:

  • Evidence that the benefits of the alien’s work (a) are national in scope, (b) benefit more than a particular region of the country, and (c) will involve no adverse impact to other regions of the country, but in fact will benefit other regions of the country.
  • Evidence that the alien’s work is in an area of substantial intrinsic merit.
  • Evidence that the alien has achieved a degree of expertise significantly above that ordinarily encountered in his field.
  • Evidence that the national interest of the United States would be adversely affected if a labor certification were required.
  • Evidence that the alien is not seeking a national interest waiver for the purpose of ameliorating a local labor shortage.
  • Evidence that the alien is responsible for innovative work which serves the national interest.
  • Evidence that the alien’s past record of prior achievement justifies projections of future benefit.

PERM Labor Certifications for Managers & Skilled workers

In order to sponsor an employee for a green card through labor certification, the employer must show that adequate recruitment has been conducted by the employer and that there are not enough qualified US workers available to fill the positions available for the job offered.  Employers file applications for Alien Labor Certification with the DOL in order to sponsor an alien for Lawful Permanent Resident status by demonstrating that there are insufficient US workers available who meet the minimum qualifications for a given position.

The DOL’s regulation, known as Program Electronic Review Management (PERM), will apply to applications for Alien Labor Certification that are filed before March 28, 2005.

PERM provides for an electronic automated attestation system where employers will complete an electronic application form called an ETA-9089 in which they answer a series of questions relating to the sponsoring employer and the job offer the employer wishes to have certified. The employer must maintain certain documentation in support of the application but need not submit it to the DOL unless the employer is audited.

Recruitment Evidence: Before filing Form ETA-9089, employers will have to undertake certain recruitment efforts and document the results. The nature of this recruitment is specifically mandated by the regulation. At a minimum the employer must:

  1. Post a notice of the job opportunity in conspicuous places at the work site for at least 10 consecutive business days.
  2. Post a notice of the job opportunity through all in-house media within the employer’s organization. This includes both electronic (e.g., websites) and printed in-house media and is separate from the posting requirement listed above. The duration and manner of these in-house media postings must accord with normal procedures used by the employer to recruit for similar positions.
  3. Place a Job Order with the State Workforce Agency (SWA) for at least 30 days. The SWA is the local state office of the DOL having jurisdiction over the place of employment.
  4. Place two advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment. The ads need not include the salary or a detailed listing of the job requirements but they must be specific enough to apprise US workers of the job opportunity. The employer’s name must be mentioned in the advertisement. If the job requires experience and an advanced degree, the employer may opt to use a professional journal advertisement instead of one of the two Sunday ads.
  5. For professional positions, take three additional recruitment steps. In addition to the measures set forth above, for professional positions (i.e., those that require that attainment of a Bachelor’s degree or higher), the employer must undertake at least three of the following ten recruitment efforts within 180 days before filing the application: (1) job fairs; (2) employer’s web site; (3) job search web site other than the employer’s; (4) on-campus recruiting; (5) trade or professional organizations; (6) private employment firms; (7) an employee referral program, if it includes identifiable incentives; (8) a notice of the job opening at a campus placement office; (9) local and ethnic newspapers if appropriate for the job opportunity; and (10) radio and television advertisements.
  6. Prepare a detailed recruitment report. The employer must prepare and sign a recruitment report upon completion of advertising. The report must include the number of hires and the number of US workers rejected categorized by the lawful job-related reasons for the rejection. The Certifying Officer may request copies of the resumes of those US workers who applied for the position and require the employer to sort the resumes according to the basis for rejection.
  7. Consider qualified laid-off workers: If applicable, the employer must notify and consider for the position any workers it laid off within the six months prior to filing Form ETA-9089 who had worked for the employer in the occupation for which certification is sought or in a related occupation. The employer must document that it offered the position to those laid-off workers who were able, willing and qualified to do the job.

Prevailing Wage: Under PERM, the employer will be required to pay 100% of what DOL determines to be the prevailing wage for the certified position. Employers must submit a prevailing wage request form to the SWA and receive a response before filing Form ETA-9089. If an employer disagrees with a prevailing wage determination, it may file supplemental information, submit a new prevailing wage request or appeal the SWA’s determination.

Processing after the Labor Certification is approved:  After the DOL issues a labor certification, the employer files a green card petition (form I-140) with CIS. CIS reviews the application to see that the foreign applicant in fact qualifies for a green card by meeting all of the requirements demanded of US workers.  Assuming the I-140 is approved, the employee is now eligible for a green card, and can apply to “adjust status” to permanent resident if a visa number is available. This involves fingerprinting, a medical exam and numerous forms.

Third Preference (EB-3 Unskilled Workers:  Full-time employees in jobs not requiring two years experience or training can still qualify for Green Cards provided that a testing of the job market under Labor Certification procedures shows that there are no US citizens or permanent residents meeting minimum qualifications for the job.

Green cards for Investors (EB-5)

Requirements: To be eligible for this Permanent Residence process, you must:

  • Invest in and actively manage or establish policies for a “qualifying commercial enterprise” which will employ at least ten (10) US workers; and
  • be in the process of investing or have invested a minimum of $1,000,000. Exception: Certain “targeted areas” (rural or high unemployment) require an investment of only $500,000.

A “qualifying commercial enterprise” can be any of the following:

  • the creation of a brand new or original business; or
  • the purchase of an existing business and “simultaneous or subsequent restructuring or reorganization such that a new commercial enterprise results;” or
  • an investment in an existing business which increases its net worth and number of employees by 40%, resulting in at least ten new jobs and a new net worth which is 140% of the pre-expansion net worth; or
  • an investment in a troubled business which has been in existence for at least two (2) years and has incurred a net loss equal to at least twenty percent (20%) of its prior net worth, and the investment saves at least 10 jobs.

Type of Investment: The capital investment can be a combination of cash, inventory, equipment or loans, so long as borrowed funds are not secured by the assets of the new or existing enterprise.  The investment capital can be from a US source, such as a commercial bank, or from overseas.

Employment of Ten US Workers: The investor can take up to two years to create the required ten (10) full-time employment positions if he submits a comprehensive business plan.  “Regional Centers” liberalizes the job creation rules for investments.

Family: A qualifying Investor and his spouse and children under 21 will receive Conditional Permanent Residence for two (2) years and then Permanent Residence (Green Card) based upon the continued viability of the investment.

 

Temporary (Nonimmigrant visa) Options

In addition to the above described options for obtaining lawful permanent residence through employment, there are other options for temporary status related to employment:

B-1 Business visitor visas

The B-1 visa is designed for temporary business activities which promote international trade, commerce or investment.

Duration: B-1 visas are generally issued for a year or more (sometimes up to ten years). Entries are generally limited to six months.

Extended Stay/Change Status: A B-1 visitor can apply to extend his/her stay beyond six months without limit. However, the visitor must continue to demonstrate nonimmigrant intent. A B-1 visa holder may change to another status. However, if an application for change is made within 30 days of entry, CIS presumes that the B entry was fraudulent, and was made with the intent to stay.

Limitations: Business visitors on a B-1 visa cannot be paid a salary by a US company and cannot engage in local skilled or unskilled labor (productive employment).

Permissible B-1 Visa Activities: The regulations explicitly bar B-1 visa holders from performing skilled or unskilled labor. However, the CIS and State Department have approved use of the B-1 visa for some limited types of work where the activities are temporary in nature but are not covered by any other visa category. Engaging in unlawful work in the US can result in serious consequences for both the employer and the individual employee (including fines, deportation of the employee and inability of the employee to re-enter the US). The following are some activities which are permitted using a B visa: they can train, consult with business associates, take orders, participate in meetings, negotiate contracts, or look for sites for investments.

H-1B visas for degreed professionals

An H-1B visa permits US employers to hire foreign professional employees who have at least a four year college degree, if they will work in a position requiring a college degree.  H-1B visas are available to persons with (1) a 4 year Baccalaureate Degree or the foreign equivalent; or (2) persons who can show by expert affidavits that their combination of education and qualifying experience is the equivalent of at least a US four year B.A. or B.S. degree in the field.

Duration: An H-1B visa is valid initially for up to three (3) years and can be extended an additional three (3) years for a total of six years, regardless of the number of employers during that time. Extensions beyond six years are available in limited circumstances.

Limitations: There are many technical requirements, including payment of a prevailing wage and the filing of a Labor Condition Application, for successful processing of an H-1B. Failure to comply with all of the H-1B regulations can result in the employer being disqualified for one year from hiring any additional H-1B specialty occupation workers, as well as other fines and penalties.

E-1/E-2 Treaty trader and Investor visas

Citizens of certain countries may gain entry to the United States for trade or investment using E-2 Treaty Investor and E-1 Treaty Trader visas. Because these visas can be renewed in five-year increments for 10, 20 or even 30 years or longer, they remain excellent options for many foreign businessmen.

E-2 Treaty Investor Visa allows you to: (1) move your entire business to the United States, or (2) start a new business in the US if you are not now in business, or (3) establish or expand a US branch, affiliate or subsidiary of your foreign company, or (4) if you are a foreign owned business, to transfer to the US personnel of the same nationality as the company.

Same Nationality: An E-2 applicant must be of the same nationality as the foreign company or investor, and the nationality must be one of the treaty countries.

No Minimum Investment: There is no minimum required investment for an E-2 investor visa. In the case of small businesses, as a general guideline, an owner investor can usually obtain E-2 status if he will (1) actively manage the small business; (2) put at risk, including borrowed funds secured for personal assets, a substantial investment in capital and/or equipment and (3) plan to employ at least several US workers. The amount of the investment varies depending upon the nature of each investment. US State Department guidelines suggest that the smaller the business, the greater percentage of its value must be invested to qualify. The key is that the business cannot be “marginal,” that is, designed just to provide a living for the owner and his family.

Other Requirements: To qualify for an E-2 visa, the applicant must be entering the US to perform either (a) managerial or executive functions, or (b) functions requiring essential skills.

Duration: The E-2 visa is usually issued for an initial period of 2-5 years. There is no limit to the number of renewals. Admission is for 2 years.

Family: The spouse and children of an E-2 investor also receive E-2 visas. Spouse can receive employment authorization for a period of 2 years at a time.

E-1 Treaty Trader visa. To qualify, the following requirements must be met: (1) The trader’s US office must engage in substantial trade with the foreign country of its shareholders. “Substantial trade” is not measured just in dollars. Frequent and continuous trade in goods or services of small dollar value may also qualify for E-1 visa treatment. (2) At least 50% of the trade must be between the US business applying for the E-1 visa and the foreign country of which the employee is a citizen. (3) The US business must be at least 50% owned by persons holding the same nationality as the visa applicant.

Types of Trade:  Export and import firms can qualify, as do manufacturing companies purchasing most of their equipment and parts from their parent firms.

Duration: The E-1 will be valid for two to five years and can be renewed indefinitely.  Admission is for 2 years.

Family: The spouse and children of an E-1 investor also receive E-1 visas.

L-1A/L-1B visas for Multinational employees

Where a foreign company has a related US company (branch, parent, subsidiary or affiliate), US immigration law allows temporary transfers (no longer than 5 or 7 years) of (1) managers, (2) executives and (3) persons with specialized knowledge to the related US company under the L-1 visa category.

Requirements:

  • To qualify as an L-1A manager or executive, the employee must show that the employee has day-to-day decision making authority and supervises other personnel of the company or manages an important function of the business.
  • To qualify as an L-1B employee with specialized knowledge, the employee must show that s/he has specialized proprietary knowledge of the company’s “product, service, research, equipment, techniques, management or other interests” as it applies to international sales and markets.
  • New office L-1 visas are issued for one year initially. It may be extended if USCIS determines that the business is active and operating by looking at the “number of employees, significant growth in cash flow, presence of significant customers and clientele, or similar elements.”

Nationality of Employee: Unlike E-visas, the employee need not be of the same nationality as the foreign company. However, the employee must have worked for the overseas parent at least one full year within the 3 years preceding their first entry into the United States.

Duration: L-1 visas are issued for an initial period of 1-3 years. The maximum time limit of L-1A visas for managers and executives is seven (7) years. L-1B visas (for specialized knowledge employees) can be renewed in two-year increments for a maximum of five (5) years.  Individual petitions are filed in the US by the US subsidiary or branch office.

Blanket Petitions” can also be filed for large organizations or those having transferred at least ten (10) employees under the L-1 program during the previous year. Blanket Petitions further streamline the process by allowing the company to issue its own certificate of eligibility which the employee takes directly to the US Consulate, allowing L-1A and L-1B visas to be issued in two weeks or less.

Spouse Employment: Spouses of L-1 visa holders can obtain work authorization in the US

Dual Intent: Like the H-1B, L visa holders can permissibly have the intent to remain permanently in the US, which means that they can apply for a green card without jeopardizing the L-1 status.

TN for Canadians and Mexicans

A number of special procedures apply only to Canadians and Mexicans under NAFTA.  NAFTA created a new visa category, the Treaty NAFTA (or “TN Visa”) for Canadian and Mexican citizens seeking temporary entry for business or professional activities. The TN is valid for one year and requires that the TN holder work as an employee or under contract for a US employer. Unlike the H-1B visa (6-year maximum), the TN can be renewed indefinitely (unlimited yearly extensions).

TN Procedure: There is no application form for TN status, unless the person is already in the United States. Canadians apply for entry under the TN category directly to a CIS officer at the border or at preclearance stations at an international airport in Canada or Mexico. Mexicans must apply directly at a US Consulate in Mexico to obtain a TN visa. Applicants are admitted upon proof of citizenship and of qualifications meeting the criteria of the TN visa. Typical documentation includes educational credentials, an offer of employment or contract from a US employer and proof of Canadian or Mexican citizenship.

Special Rules for Canadians: Canadian citizens do not need to carry with them a valid Canadian passport when entering the US, proof of Canadian citizenship is sufficient (i.e., birth certificate). However, a passport is advisable to help obtain a US social security card and driver’s license after arriving in the US

Special TN Rules for Canadians and Mexicans: For nearly all TN professional occupations (other than computer systems analyst and management consultant), experience cannot be substituted for education in meeting the TN educational requirements.  Some occupations, such as architect, lawyer, and physician, may also include licensing requirements.  The spouse and children of the TN receive TD status and cannot work under that category in the US.