Employment Immigration - Immigration Series Part 1
Updated: Mar 6, 2019
Working in the United States is a desire many people have. Unfortunately, you can't just get up and move, get a job and build your own American Dream. There's a process involved, a long one at that. This post will help you get a good overview and a clearer understanding of what Employment Immigration is, what the process entails and untangle any myths from reality.
Overview: What is Employment Immigration?
Employment-based immigration is for people from foreign countries who have found jobs in the United States of America. It's either employees that work for a company a branch in the United States or for people who have a full-time job offer in the U.S. In both cases, the employer is sponsoring their visa and their move to the U.S. to work for their company.
These visas are very attractive, and many people want them, as, once you obtain one, you get to enjoy the benefits of a Green Card holder — no need to say that the competition is very stiff. Especially as the U.S. government has limited the amount of available employment-based immigrant visas to 140'000 every fiscal year (October 1st - September 30th), this number is divided into five different preference categories, that determine the requirements that have to be met to be eligible for an employment-based immigration visa.
These five preference categories are as follows:
Employment first preference (EB-1)
This category consists of First Priority workers, that means, professionals who have excellent academic or work achievements. By obtaining an EB-1 visa, they may immigrate to the U.S. permanently. Workers in this category receive 28.6% of the yearly worldwide limit of available visas (around 40'0000 visas). All Priority Workers must be the beneficiaries of an approved Form I-140, Immigrant Petition for Foreign Worker, filed with USCIS. There are three subgroups to this first category:
1. Outstanding researchers and professors who have at least three years of teaching and research experience that is internationally recognized and have received international recognition for their contributions in their respective fields. They must further prove that they are immigrating to the U.S. to continue to pursue tenure, tenure track teaching or a comparable research position at a university or any other institution of higher education.
Requirements for researchers and professors
Have a valid job offer and meet two of the following criteria:
Evidence of receipt of major prizes or awards for outstanding achievement
Evidence of membership in associations that require their members to demonstrate outstanding achievement
Evidence of published material in professional publications written by others about the alien's work in the academic field
Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
Evidence of original scientific or scholarly research contributions in the field
Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field
2. People with extraordinary abilities in science, art, athletics, business or education who have extensive documentation showing sustained national or international honor and recognition in their field of expertise. This group does not require a specific job offer as long as they enter the U.S. to continue working in the field of their extraordinary ability; this means, they can file their own petition and self sponsor. As a lot of times professionals with extraordinary abilities in fields like science (such as cancer researchers), or art (musicians, fashion designers) are not employed with a company as such.
Requirements for people with extraordinary abilities
Meet three of the following criteria:
Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
Evidence of your membership in associations in the field which demand outstanding achievement of their members
Evidence of published material about you in professional or major trade publications or other major media
Evidence that you have been asked to judge the work of others, either individually or on a panel
Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
Evidence that your work has been displayed at artistic exhibitions or showcases
Evidence of your performance of a leading or critical role in distinguished organizations
Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
Evidence of your commercial successes in the performing arts
3. Executives or Multinational managers must have worked at a foreign branch of a U.S company for at least one of the last three preceding years, and their position in the U.S. must match or be higher than their current position abroad.
Requirements for executives or multinational managers Must have a valid job offer from an employer
Employment second preference (EB-2)
Workers in this category must hold Advanced Degrees, or have exceptional abilities in the Arts, Sciences, or Business. They must have a labor certificate approved by the Department of Labor. A job offer is required and, as in the first category, a petition (I-140) on behalf of the applicant must be filed. Here this needs to be filed by an employer, however, as people in this group are not able to self-sponsor.
With an EB-2 visa workers move permanently to the U.S. and will work in their field of expertise. Second priority workers receive 28.6% of the yearly worldwide limit of available visas (around 40'0000 visas), plus any unused Employment First Preference visas.
There are two subgroups for this second category:
1. Professionals holding an advanced degree (such as Bachelor’s or Master’s) and who have at least five years of progressive work experience in the profession with one employer. This description already includes all the requirements to apply for the EB-2 Visa as a professional holding an advanced degree.
2. Persons with exceptional abilities in the arts, sciences, or business. This means “having a degree of expertise significantly above that ordinarily encountered within the field.”
Requirements for people with exceptional abilities
Meet three of the following 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 ten 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.
Employment third preference (EB-3)
People in this category must be skilled workers, professionals holding baccalaureate degrees or simply ‘other workers.’ All applicants in this third category require an approved I-140 petition, here to be filled out by their prospective or current employer. Third preference applicants further need a PERM Labor Certification, Recruitment and Prevailing Wage Determination, by the DOL (Department of Labor). Third priority workers also receive 28.6% of the yearly worldwide limit of available visas (around 40'0000 visas), plus any unused Employment First and Second Preference visas. There are three subgroups for this third category: 1. Skilled workers with more than two years of work experience 2. Professionals with a higher education degree 3. Unskilled workers with less than two years of work experience The requirements for this category are relatively simple. All that is needed is a permanent full-time job offer from a U.S. employer that is willing to sponsor you and an approved PERM Labor Certification from the DOL. This category seems a little more ‘down to earth’ or maybe more realistic for most people. The requirements are not as extravagant as the ones we’ve seen in the previous two categories. Third priority workers are people like you and me really. People with normal jobs that happened to find a U.S. Employer that wants to take them on! There is a tricky part though. With a current unemployment rate of 4.0% in the United States, it may not make much sense for a U.S. firm to hire a skilled worker from abroad if they can hire an American applicant who has the same qualifications. For an employer to hire a foreign skilled or unskilled worker or a professional with a higher education degree, the employer must be able to prove that they could not find a qualified, willing or available U.S. applicant for the position. Further, as they will be sponsoring you, they must provide financial proof that they are able to afford to sponsor the foreign worker and pay him/her the appropriate wages (we’ll talk more about that process after we’re through with all five categories).
Employment fourth preference (EB-4)
This category is for special immigrants and has a lot of different subcategories. The requirements are comparable to the third preference category but the group of people included is quite different. Here, we’re not looking at workers with a degree or with a certain amount of work experience, more so we are looking at very specific and narrowed down groups of people as you’ll see in the list below. Special immigrants receive 7.1% of the yearly worldwide limit of available visas (around 10'0000 visas).
This fourth category includes: 1. Broadcasters in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors 2. Ministers of Religion and certain Religious workers 3. Certain Employees or Former Employees of the U.S. Government Abroad 4. Certain Former Employees of the Panama Canal Company or Canal Zone Government 5. Iraqi and Afghan interpreters/translators who have worked directly with the United States armed forces 6. Iraqi and Afghan nationals who have provided faithful and valuable service while employed by or on behalf of the U.S. government in Iraq 7. Certain Retired International Organization Employees 8. Certain Unmarried Sons and Daughters of International Organization Employees 9. Certain Surviving Spouses of deceased International Organization Employees 10. Persons Recruited Outside of the United States Who Have Served or are Enlisted to Serve in the U.S. Armed Forces 11. Certain retired NATO-6 civilians 12. Certain Unmarried Sons and Daughters of NATO-6 civilians 13. Certain Surviving Spouses of deceased NATO-6 civilian employees
Requirements: As previously mentioned, the requirements to get an EB-4 visa are similar to the EB-3 requirements. The persons mentioned above will obtain an EB-4 visa should they find a permanent position in the United States within their area of expertise (if they are defined by occupation like Broadcasters or Ministers). The applicants must have a valid and permanent full-time job offer from a U.S. employer. If the proposal is outside of their field of expertise, they do not qualify.
Employment fifth preference (EB-5)
This category is for those who invest in the U.S. Economy. Not just any kind of investment is sufficient, however. The amounts must be somewhere between $500’000 and $1 Million. Further, investments must help increase economic development and, over the course of two years, create at least ten full-time jobs.
Investors receive 7.1% of the yearly worldwide limit of available visas (around 10'0000 visas). To go into every single type of investor visa would have us stray too far from the path of Employment Immigration; therefore we’re just going to list the four subcategories and save the details for another post. If you would like to know everything about the different types of investor visas already, click here.
C-5 visa for investors who create jobs outside of target areas
T-5 visa for investors who create jobs in targeted rural or high unemployment areas
R-5 visa for investors who participate in an Investor Pilot Program, not in a target area
I-5 visa for investors who participate in an Investor Pilot Program in a targeted area
So, now that we know everything there is to the different visas and categories, what’s next? How should you apply, how much does it cost, what do you need, how long does it take? Glad you asked! The visas in the five different categories all have a very similar application procedure, and the whole process can be incredibly overwhelming. Also every situation is unique, so reading other people’s cases will not be a reliable source to base your expectations on. Let’s go over the generic process, always keeping in mind that your situation is unlike any other.
Before you can start filing more paperwork that you have probably ever filed in your life, there’s a crucial step that has to be completed by your employer, if they are the one sponsoring you. Going through an extensive recruitment process to prove that you are not taking a job from a qualified U.S. worker, your employer needs to obtain a Permanent Labor Certification on your behalf.
Further, your employer will need to post three different ads for thirty days to see, if there’s a U.S. Citizen who is willing to take the job and meets all the required qualifications.
The three different kinds of ads are:
Job order: this must run for at least thirty days
Newspaper ads: this must be in a high-circulation paper on two separate Sundays
Three auxiliary ads posted in areas like the internet, radio, or college campuses
All applicants must be considered for the position, and if your employer denies the position to them, they need to give valid reasons for rejecting each one. Should no other candidate be a good fit and you’re still the most suited for the position, your employer can go ahead and file the ETA-9089 form with the DOL, which allows your employer to seek what is known as “permanent labor certification” for a prospective employee. What this basically means is, your employer is asking for permission to hire a foreign worker. If you are applying for the EB-5 visa, you would file Form I-526 instead which is an Immigrant Petition by Alien Entrepreneur. If you are applying for the EB-1 visa, the Permanent Labor Certification is not required.
What about Audits?
Great question! Audits are very possible. Whether they are random to maintain program integrity or targeted ones to ensure your employer is not taking advantage of the system. These targeted audits can be triggered by inconsistent information on the reports provided on the advertising results, as to why no U.S. citizen was suitable for the position. If your employer is audited, it will add several months to the processing time of your Permanent Labor Certification. During this process, be sure to work alongside your immigration attorney to make sure everything is handled correctly, and your application isn’t jeopardized in any way.
Once all of the above is approved, your case is being taken over by the National Visa Center (NVC) who will provide you with a case number and send you an invoice to pay the application fees (we will talk about costs and fees in a moment). You will be asked to complete a medical examination and certain vaccinations. After receiving your payment, the
NVC will ask you to fill out and file the following documents:
Your passport (must be valid for more than six months after departing for the U.S)
Your employment offer from the U.S employer
The approved labor certification
The approved petition
Your DS-261 confirmation page (online Immigrant Visa Application & Registration)
Your signed medical and vaccine documents;
Two photographs meeting the photo requirements
Academic achievements (diplomas and certificates)
After you have filed all the above with the NVC, the waiting game starts again. Currently, the time between filing and getting an appointment for your visa interview is between 60 and 90 days. Your interview will be scheduled (usually one month in advance) with the US Embassy or Consulate closest to you and you, your sponsor, and your attorney (if applicable) will receive the interview notice.
This is a big one! It’s exciting to have gotten this far but nerve-racking at the same time, and you probably wonder, if there are certain tips and tricks to prepare for the interview, right? Well, you’re in luck. As previously mentioned, every case is different and therefore so is every interview. However, there is a general process that is being followed, and there are one or two ways you can prepare. One important thing we’d like to note is, though it may seem obvious, it’s still worth pointing out: Even if you have an interview scheduled, do not make any arrangements yet, such as selling your house, booking your flight to the U.S. or quitting your current job. There is still a possibility that your application gets declined, based on the interview.
Prepare by gathering all the original supporting documents of any copies sent to the NVC. Usually, the medical exam will already be over with now but in case you haven’t completed it yet, make sure you schedule that before the interview. You have to go to an embassy approved doctor, as exams conducted by other physicians will not be accepted. You will be sent a full checklist with everything you need to bring to the interview, but here is already an example for you. Any documents that are in your native language must be translated into English before the interview.
Make sure you tick off everything and double check a couple of weeks before the interview, in that case, if you have forgotten a certain document you’d still have enough time to get it. There is nothing worse than having to try and gather last-minute documentation a day before your important interview. They will not be accepting of any missing documentation, and you will have to come back for another interview and this will, of course, delay your application process or they may even deny your application.
For all you visual learners, here’s a great YouTube video that walks you through the interview preparation process as well.
During the interview
On the day of the interview, you will attend together with your attorney (if applicable) and will need to bring a valid passport as well as any documentation that has not yet been provided to the NVC. Your employer/sponsor does not need to come along for the interview.
You will be waiting between 15 and 30 minutes for an Immigrant Service Officer to pick you up and take you into the interview room where you will be asked to take an oath, to tell the truth during the following interview. The officer will ask you for your passport and all your paperwork, then take your picture and your digital fingerprints.
After the officer has reviewed your application (they don’t prepare beforehand, they see your application for the first time during your interview), they will start by asking you general questions about biographic information such as: What is your name? What is your date of birth? They will ask you for your address and employment history as well as your educational background. If your answers differ from the filled-out information on the forms submitted, the officer will further inquire about the inconsistent items. A lot of the questions will be just going over the forms you have submitted but as it is immigration due to employment, be prepared to answer questions about the job offered to your, such as: What will be your primary duties in the new position? Where will you be working? Tell me more about your employer.
The most important piece of advice we can give you is: be honest! Always. When filling out the application and during the interview. When your information is inconsistent, they will ask again and again and getting tangled up in a lie is not exactly the way you want the process to go. Attempting to obtain a visa by the willful misrepresentation of a material fact or fraud may result in you becoming permanently ineligible to receive a U.S. visa or enter the United States.
The decision is made right there on the spot. If you succeeded, you will be given your passport back containing the immigrant visa. You will also receive your green card as well as a sealed package in the mail within two to three weeks after the interview containing the documents you provided. Do not open this package. Once you arrive at the border in the United States, the immigration official will open it, review the documents and grant you entry. Entry is not guaranteed; The border protection still has authority to deny admission to the United States. You can find more information about entry requirements here.
Costs and Fees
The immigration process is not exactly cheap. In addition to the fees you will pay your Immigration Attorney for legal representation, the Government also requires that a mandatory Filing Fee to be paid directly to the Government when an application is filed. The Government Filing Fees are always subject to change, and the latest Filing Fee's can be found on the USCIS website. For example, at the present time, the Government requires the following Filing Fee's for some of the Forms we have discussed in this article such as:
I–140 Immigrant Petition for Alien Worker: $700
So, how long does this process take? Unfortunately, there is not one answer that applies to every single case. As every case is different and if there’s a form that wasn’t filed or anything else that was forgotten or not done properly, it can extend the process by months. For a general timeframe, however, we are looking at around six months for the petition to process. If a PERM Labor Certification is required, it can take anywhere from eight months to two years.
Once in the United States
You finally made it! Once you enter the United States of America, there are a few things you’ll have to do. USCIS has you covered with their guide for immigrants that will make your beginnings in the States easier.