Employment Based Immigration
You will need work authorization to work legally in the United States temporarily or permanently, contact us if you have questions on how to obtain a green card or a work visa.
Summary of US Non-immigrant Visas |
If you are not planning to stay in the United States permanently or you cannot stay permanently, you should apply for a non-immigrant visa. We prepared the following chart so that you will have a general idea of U.S. non-immigrant visas. However, this is a very simplified introduction. You should seek the advice of an experienced immigration attorney if you need to apply for a visa. Below is a summary of all US non-immigrant visas:
Visa Type Description Notes
Above brief introduction are educational and informational. If you need further information on a specific nonimmigrant visa category, please contact Xie Law Offices, LLC. for more information. |
H VISAS |
H Visas include the following visas: H-1B, H-1B1, H-1C, H-2A, H-2B, H-3
H-1B Specialty Occupation The job must meet one of the following criteria to qualify as a specialty occupation:
For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:
H-1B2 DOD Researcher and Development Project Worker The job must meet both of the following criteria to qualify as a DOD cooperative research and development project:
To be eligible for this visa category you must meet one of the following criteria:
H-1B3 Fashion Model The position/services must require a fashion model of prominence. To be eligible for this visa category you must be a fashion model of distinguished merit and ability. *** Excerpts from www.uscis.gov |
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 which 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. The employer must file a Form I-129, Petition for a Nonimmigrant Worker [http://www.uscis.gov/I-129], with fee, on behalf of the employee.
The following information describes some of the features and requirements of the L-1 nonimmigrant visa program.
General Qualifications of the Employer and Employee
To qualify for L-1 classification in this category, the employer must:
- Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
- Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.
Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
To qualify, the named employee must also:
- Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
- Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.
Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.
Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others. See section 101(a)(44) of the Immigration and Nationality Act, as amended, and 8 CFR 214.2(l)(1)(ii) for complete definitions.
New Offices
For foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office, the employer must also show that:
- The employer has secured sufficient physical premises to house the new office;
- The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
- The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.
See 8 CFR 214.2(l)(3)(v) for details.
Period of Stay
Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years. For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.
Family of L-1 Workers
The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.
Change/Extend Nonimmigrant Status
If these family members are already in the United States and seeking change of status to or extension of stay in L-2 classification, they may apply collectively, with fee, on an Form I-539, Application to Change/Extend Nonimmigrant Status, [http://www.uscis.gov/I-539].
Spouses
Spouses of L-1 workers may apply for work authorization by filing a Form I-765, Application for Employment Authorization [http://www.uscis.gov/I-765] with fee. If approved, there is no specific restriction as to where the L-2 spouse may work.
Blanket Petitions
Certain organizations may establish the required intracompany relationship in advance of filing individual L-1 petitions by filing a blanket petition. Eligibility for blanket L certification may be established if:
- The petitioner and each of the qualifying organizations are engaged in commercial trade or services;
- The petitioner has an office in the United States which has been doing business for one year or more;
- The petitioner has three or more domestic and foreign branches, subsidiaries, and affiliates; and
- The petitioner along with the other qualifying organizations meet one of the following criteria:
- Have obtained at least 10 L-1 approvals during the previous 12-month period;
- Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or
- Have a U.S. work force of at least 1,000 employees.
The approval of a blanket L petition does not guarantee that an employee will be granted L-1A classification. It does, however, provide the employer with the flexibility to transfer eligible employees to the United States quickly and with short notice without having to file an individual petition with USCIS.
Where an L-1 visa is required
In most cases, once the blanket petition has been approved, the employer need only complete Form, I-129S,Nonimmigrant Petition Based on Blanket L Petition [http://www.uscis.gov/I-129s], and send it to the employee along with a copy of the blanket petition Approval Notice and other required evidence, so that the employee may present it to a consular officer in connection with an application for an L-1 visa.
Canadians with an approved blanket petition seeking L-1 classification
Canadian citizens, who are exempt from the L-1 visa requirement, may present the completed Form I-129S and supporting documentation to a U.S. Customs and Border Protection (CBP) Officer at certain ports-of-entry on the United States-Canada land border or at a United States pre-clearance/pre-flight inspection station in Canada, in connection with an application for admission to the United States in L-1 status.
Please refer to CBP’s website [http://www.CBP.gov] for additional information and/or requirements for applying for admission into the United States.
Optional filing of Form I-129S with USCIS
If the prospective L-1 employee is visa-exempt, the employer may file the Form I-129S and supporting documentation with the USCIS Service Center that approved the blanket petition, instead of submitting the form and supporting documentation directly with CBP.
See 8 CFR 214.2(l)(4) and 8 CFR 214.2(l)(5) for more details regarding blanket petitions.
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 which does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one. The employer must file Form I-129, Petition for a Nonimmigrant Worker with fee, on behalf of the employee.
General Qualifications of the Employer and Employee
To qualify for L-1 classification in this category, the employer must:
- Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
- Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.
Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
To qualify, the named employee must also:
- Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
- Be seeking to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.
Specialized knowledge means either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures (See 8 CFR 214.2(l)(1)(ii)(D)).
*** https://www.uscis.gov/working-united-states/temporary-nonimmigrant-workers
O-1 Visa & O-2 Visa |
What is O-1 Visa?
O-1 is a temporary work visa or status for individuals of extraordinary ability in the sciences, education, business, arts or athletics and individuals of extraordinary achievement in the motion picture and television industries. What are the qualifications for O-1? To qualify as an alien of extraordinary ability in science, education, business or athletics, the alien must:
Special Sponsorship Requirement An individual seeking an O-1 Visa or status must have a US employer as the sponsor. Therefore a job offer is needed to file such petition. For instance, if a scientist of extraordinary ability coming to the US to work, he or she will need a university, research institution or a company to file the petition; if a professional table tennis player wants to come to the US to play table tennis, a table tennis team or club may apply for an O-1 Visa on his/ her behalf. If the person is a musician, a musical group must apply for him/her. An actor will need a studio to apply on his/her behalf. In addition, an O-1 petition also requires consultations with an appropriate peer group which could include a person or persons with expertise in the field, labor or management organization regarding the proposed work and the beneficiary’s qualifications. In the case of O-1 consultations for aliens of extraordinary achievement in motion picture or television, consultations from both a labor consultation and management organization are required. Duration of O-1 Visa How can I apply for O-1 Visa? If you think you have documents to prove that you have extraordiary ability in your field and you have a US employer who is willing to sponsor the O-1 petition for you, you can email a copy of your updated resume to help@xielaw.com for free case evaluation or visit Case Evaluation page. We will make sure that you do have an approval O-1 case before we agree to accept your case. What is O-2 Visa? An O-2 visa is issued to the support personnel who accompany the O-1 visa holders, in the fields of athletics, entertainment, motion picture and television production. This status is not available to those individuals related to the areas of science, business or education. To be eligible for an O-2 visa, the alien must meet the following criteria:
What is O-3 Visa? O-3 visas are issued to the immediate family members (spouse and unmarried minor children) of the O-1 and the O-2 visa holders. |
TN Visa FAQs |
On October 14, 2008, USCIS announces increased period of stay for TN visa holder from 1 year to 3 years.
Q: What is the TN nonimmigrant classification? A: The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. The TN classification was created following Congressional approval of the North American Free Trade Agreement (NAFTA) on December 8, 1993. Q: What professional activities may a TN worker engage in? Q: Is there an annual cap or limit on the number of TN visas? Q: How do Canadian citizens obtain the TN nonimmigrant classification? Q: How do Mexican citizens obtain the TN nonimmigrant classification? Q: Why are the rules different for Canadian and Mexican citizens? Q: For how long is a person granted TN classification admitted? A: Previously, aliens admitted in TN status are admitted for a maximum of one year and by the end of that period must either seek readmission in TN nonimmigrant status or apply to USCIS for an extension of stay. This final rule will extend that period to a maximum of three years to be consistent with other nonimmigrant worker categories, such as the H-1B. Q: How many times can a person apply for TN visas? Q: What are the benefits to employers and to TN workers of the proposed extension of the TN period of stay? • Provide for a more stable and predictable workforce for TN employers; Q: Are spouses and children of TN nonimmigrants allowed to enter the U.S.? Q: What systems are in place to avoid fraud or misuse of the TN visa by corrupt employers and smugglers? A: The final rule does not change security check requirements for TN nonimmigrants or their dependents. The extended period of admission and readmission from one year to three years will be subject to all applicable security checks. Further, TN nonimmigrants present in the United States will still be subject to the same rules regarding removability/deportability and the same conditions of stay (other than the initial period of admission/one year extension of stay requirement) as they are under the current regulations.
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What is the Employment-Based Visas? |
The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas which are divided into five preference categories. They may require a labor certification from the U.S. Department of Labor (DOL), and the filing of a petition with the Immigration and Naturalization Service (INS).Employment First Preference (E1)
Priority Workers receive 28.6 percent of the yearly worldwide limit. All Priority Workers must be the beneficiaries of an approved Form I- 140, Immigrant Petition for Foreign Worker, filed with INS. Within this preference there are three sub-groups: Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. Such applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. Such applicants can file their own petition with the INS, rather than through an employer; Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the INS; and Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the INS. Employment Second Preference (E2) Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Sciences, or Business receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First Preference visas. All Second Preference applicants must have a labor certification approved by the DOL, or Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program (later). A job offer is required and the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the alien may file the petition, Form I-140, along with evidence of the national interest. There are two subgroups within this category: Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession; and Persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field. Employment Third Preference (E3) Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First and Second Preference visas. All Third Preference applicants require an approved I-140 petition filed by the prospective employer. All such workers require a labor certification, or Schedule A designation, or evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. There are three subgroups within this category: Skilled workers are persons capable of performing a job requiring at least two years’ training or experience; Professionals with a baccalaureate degree are members of a profession with at least a university bachelor’s degree; and Other workers are those persons capable of filling positions requiring less than two years’ training or experience. Employment Fourth Preference (E4) Special Immigrants receive 7.1 percent of the yearly worldwide limit. All such applicants must be the beneficiary of an approved I-360, Petition for Special Immigrant, except overseas employees of the U.S. Government who must use Form DS-1884. There are six subgroups: 1) Religious workers coming to carry on the vocation of a minister of religion, or to work in a professional capacity in a religious vocation, or to work for a tax-exempt organization affiliated with a religious denomination; 2) Certain overseas employees of the U.S. Government; 3) Former employees of the Panama Canal Company; 4) Retired employees of international organizations; 5) Certain dependents of international organization employees; and 6) Certain members of the U.S. Armed Forces. Employment Fifth Preference (E5) Employment Creation Investors receive 7.1 percent of the yearly worldwide limit. All applicants must file a Form I-526, Immigrant Petition by Alien Entrepreneur, with the INS. To qualify, an alien must invest between U.S. $500,000 and $1,000,000, depending on the employment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family. If you have any questions or need further help, you can email or call us. We will make sure you have professional help before you make your decision. This general information is intended to be informational and educational. Nothing on this or other associated pages should be taken as legal advice from this office for any individual case or situation. For legal advice for any specific situation, consult an attorney experienced in U.S. immigration law. |
What are the criteria for qualifying for “extraordinary ability”? |
If the alien is a Nobel Prize recipient, this alien is definitely qualified as having “extraordinary ability”. However, majority of the alien will not be such individuals. Thus, U.S. immigration law and regulations have provided the following criteria for qualifying for “extraordinary ability”:
1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence. 2. Membership in associations in the field that demand outstanding achievement of their members. 3. Published material about the alien. 4. Evidence that the alien is a judge of the work of others in the field. 5. Evidence of the aliens original contributions of major significance to the field. 6. Authorship of scholarly articles. 7. Display of the alien’s work at artistic exhibition or showcases. 8. Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation. 9. Evidence that the alien commands high remuneration in relation to other in the fields. 10. Evidence of commercial success in the performing arts. The alien must prove that he or she satisfies AT LEAST three of above listed criteria. Above introduction is only informational and educational and does not constitute legal advice from this law office. Please contact our office or other immigration attorney for legal advice to your individual case. |
What are qualifications as “an outstanding professor or researcher”? |
To qualify as an outstanding professor or researcher for U.S. immigration purpose, the alien must:
1. Be internationally recognized as outstanding in a specific academic field. 2. Have a minimum of three years of experience in teaching and/or research in that field. 3. Enter the United States in a tenure or tenure-track teaching or comparable research position with a private employer under certain circumstances (e.g. employing at least three full-time researchers. More specifically:
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Multinational manager or executive
You must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation and you must be seeking to enter the United States to continue service to that firm or organization. Your employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.
Your petitioning employer must be a U.S. employer. Your employer must have been doing business for at least 1 year, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed you abroad.
What is the National Interest Waiver? |
The National Interest Waiver (NIW) is a waiver of the job offer requirement for individuals who wish to immigrate to the United States. Normally, a professional who wishes to work in the U.S. must undergo the long and arduous Labor Certification process, but if the alien can prove that, he or she is
Then he or she may be eligible to file for a NIW which provides several serious advantages over the usual permanent residency process.
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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 foreign national who has exceptional ability. Below are the occupational categories and requirements:
Eligibility Criteria
Sub-Categories |
Description |
Evidence |
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Advanced Degree | The job you apply for must require an advanced degree and you must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field). | Documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty.
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Exceptional Ability | You must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” | You must meet at least three of the criteria below.* |
Criteria
- Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
- Letters documenting at least 10 years of full-time experience in your occupation
- A license to practice your profession or certification for your profession or occupation
- Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
- Membership in a professional association(s)
- Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
- Other comparable evidence of eligibility is also acceptable.
Note: Employment-based, second-preference petitions must generally be accompanied by an approved individual labor certification from the Department of Labor on Form ETA-750. Please see the Department of Labor’s “Foreign Labor Certification” page for more information.
To qualify for an EB-2 visa, your employer must file a Form I-140, Petition for Alien Worker. For more information about filing, see the “Forms” page.
Employment-Based Immigration: Third Preference EB-3
You may be eligible for this immigrant visa preference category if you are a skilled worker, professional, or other worker.
- “Skilled workers” are persons whose job requires a minimum of 2 years training or work experience, not of a temporary or seasonal nature
- “Professionals” are persons whose job requires at least a U.S. baccalaureate degree or a foreign equivalent and are a member of the professions
- The “other workers” subcategory is for persons performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature.
Eligibility Criteria
Sub-categories | Evidence | Certification |
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Skilled Workers |
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Labor certification and a permanent, full-time job offer required. |
Professionals |
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Labor certification and a permanent, full-time job offer required. |
Unskilled Workers (Other Workers) | You must be capable, at the time the petition is filed on your behalf, of performing unskilled labor (requiring less than 2 years training or experience), that is not of a temporary or seasonal nature, for which qualified workers are not available in the United States. | Labor certification and a permanent, full-time job offer required. |
Note: While eligibility requirements for the third preference classification are less stringent, you should be aware that a long backlog exists for visas in the “other workers” category. See the “Department of State: Visa Bulletin” page.
U.S. Department of Labor – Labor Certification
Third preference petitions must generally be accompanied by an approved, individual labor certification from the Department of Labor on Form ETA-9089. In some cases, the petition may be submitted to U.S. Citizenship and Immigration Service (USCIS) with an uncertified ETA-9089 for consideration as Schedule A, Group I. For more information, see the “Department of Labor: Foreign Labor Certification” page.
Application Process
Your employer (petitioner) must file a Form I-140, Petition for Alien Worker. As part of the application process, your employer must be able to demonstrate an ability to pay the offered wage as of your visa priority date. Your employer may use an annual report, federal income tax return, or audited financial statement to demonstrate an ability to pay your wage.
*** https://www.uscis.gov/working-united-states/permanent-workers
College Teachers |
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