Work-Based Immigration Overview

Second only to family immigration, work-based immigration is the most common way to migrate permanently to the United States. It is both less stable and more complex than family immigration because Congress and the regulatory agencies constantly tinker with aspects of it.

It is important to distinguish temporary/nonimmigrant work visas from permanent/immigrant work visas. Temporary work visas usually precede permanent visas. They are also easier, faster and less expensive to obtain.

Three Government Agencies

Adding to the complexity of work-based immigration are the procedures and regulations of several government agencies.

When focusing on temporary nonimmigrant work visas, the two primary agencies are CIS (both for initial processing and arriving nonimmigrant workers on temporary visas or aliens seeking change to work-visa status inside the US) and the US Department of State (for visas issued abroad).

When focusing on permanent immigrant work visas, another government agency, the US Department of Labor (DOL), comes into play. Explained below are the roles of the agencies in nonimmigrant and immigrant visa processing.

The first is the United States Department of Labor (DOL). It plays no role in most temporary work visas. The exception is the H- work visas.

Most Foreign Workers (FW’s) seeking to permanently immigrate to the U.S. must first secure a Labor Certification from the DOL. A “Labor Cert” is a test of the U.S. job market. Its purpose is to show that no U.S. worker is “minimally qualified” to fill the foreign worker’s position. Self-sponsoring immigrants are able to avoid a Labor Cert. This greatly shortens the time needed to immigrate. Important: No Labor Certification is required for temporary work visas.

The second agency is the USCIS – the United States Citizenship and Immigration Service (CIS) of the Department of Homeland Security (DHS), formerly the Immigration and Naturalization Service (INS). The procedures for securing CIS-approved temporary worker status approvals inside the US are complex and vary from category to category. In contrast, securing CIS-approved permanent immigrant worker status generally requires filing an Immigrant Petition for Alien Worker, form I-140, at one of the CIS’s four Regional Service Centers (RSC’s) in Vermont (VSC), Texas (TSC), Nebraska (NSC) or California (CSC).

After DOL and/or CIS clearance in the case of permanent work visas, a third agency – the U.S. Department of State (DOS or State Department) – allocates a permanent work visa to the FW through its National Visa Center (NVC). If abroad, the FW secures that visa through the DOS’s U.S. Consulate in his or her home country -- or in a third country if the U.S. lacks diplomatic relations with the home country.

The green card – the I-551 Resident Alien card -- is issued by CIS after the FW presents the consular-issued immigrant visa at the U.S. port of entry. If already in the U.S., the FW secures his or her green card directly from CIS through a process called Adjustment of Status (AOS). This requires filing an Application to Adjust Status, Form I-485, as well as other forms, fees and supporting documents with the appropriate RSC, often concurrently with I-140 filing.

Permanent Immigration Through Employment: Overview

In addition to agency involvement, understanding permanent work-based immigration requires an overview of these topics:

1. The Employment-Based Preference System
2. Temporary Nonimmigrant Work Visas
3. Permanent Employer Sponsorship
4. Self-Sponsorship
5. Visas for Specific Types of Workers

1. The Employment-Based Preference System

Through the Immigration and National Act (INA), Congress has created a system of five “Preference Categories” for FW’s who seek to immigrate permanently to the U.S. through their employment.

-- First Preference (EB1): Priority Workers: 40,000 Visas Annually. These are Aliens of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Executives.

-- Second Preference (EB2): 40,000 Visas Annually. Advanced Degree Aliens (Masters Degree or above) and Aliens of Exceptional Ability in the Arts or Business.

-- Third Preference (EB3): 40,000 Visas Annually. Professionals (generally, those holding Bachelor’s Degrees or their equivalent), Skilled Workers (those with two or more years experience in a vocation or trade), and Other Workers (“capable of performing unskilled labor” – limited to 5,000 annually).

-- Fourth Preference (EB4): 10,000 Visas Annually. Special Immigrants, including ministers, religious workers, former U.S. government employees and others.

-- Fifth Preference (EB5): 10,000 Visas Annually. Immigrant Investors, comprised of persons investing between $500,000 and $3 million in a job-creating enterprise in the U.S. and employing at least 10 U.S. workers.

The State Department tracks these visas and publishes their availability each month in its Visa Bulletin. There are fewer EB1 and EB2 workers, enabling them to immigrate more swiftly. EB3 and EB4 workers may wait months or years for their permanent work visas, depending on both their country of origin and the total worldwide number of workers seeking such visas.

Congress sometimes allocates visas to other types of foreign workers, like Russian scientists.

2. Temporary Nonimmigrant Work Visas

As a practical matter, most U.S. employers are unwilling to sponsor a foreign worker for permanent immigration until that worker has actually performed on the job at the U.S. worksite. This requires a temporary nonimmigrant visa (NIV) to enter the U.S. and a lawful admission and stay (evidenced by an I-94 card) to actually work for the U.S. employer in that category. Thus, many FW’s should first consider one of the following temporary work visas, some of which are explored in greater detail at this website:

A-1 -- Foreign Government Officials

B-1 -- Visitors for Business, including servants of business visitors

TN1 -- NAFTA (North American Free Trade Agreement) Workers from Canada and Mexico.

E-1/E-2 -- Treaty Traders and Investors

G-1 -- Representatives of International Organizations

H-1B -- Temporary Professional Workers in a Specialty Occupation; workers performing services of exceptional nature under certain defense agreements; and fashion models of distinguished merit and ability

H-1C – Registered Nurses in certain approved shortage facilities

H-2A -- Temporary Agricultural Workers

H-2B -- Temporary seasonal workers, including seasonal professional athletes

H-3 – Alien trainees (including externs and nurse trainees) and participants in non-paid special education exchange programs

J-1 – Participants in certain exchange visitor programs

L-1A -- Intracompany Transferees who are Managers and Executives

L-1B -- Intracompany Transferees who are Specialty Workers

N-1 – Parents and children of certain Special Immigrants

O-1 -- Aliens of Extraordinary Ability

P-1 Athletes, P-2 Artists or Entertainers under Reciprocal Exchange Programs, and P-3 artists or entertainers under culturally unique programs

Q-1 -- Visitors in certain cultural exchange programs with qualified employers

R-1 – Certain religious workers

NATO 1 through 7 – Officials and other workers, staff and servants who are participants in the North Atlantic Treaty Organization

In each of the above nonimmigrant visa categories, work authorization is “incident to status.” As a result, no separate work card is required for FW's who are admitted into the U.S. in NIV work status. Their I-94 cards showing admission and entry into the U.S. on a nonimmigrant work visa are proof of their work eligibility. That same I-94 document is valid for I-9 purposes (an employer form to verify work authorization) and can also be used to secure such benefits as Social Security cards and state driver's licenses.

In addition, certain other nonimmigrant aliens already lawfully admitted to the United States can work temporarily with CIS permission. They must submit an I-765 Application for Work Authorization to a regional or local CIS office with payment of the appropriate fee and supporting documentation. These applicants are entitled to Employment Authorization Documents (EAD’s) of varying duration, typically one year. Eligible visaholders include F-1 Academic Students, M-1 Vocational Students and J-1 Exchange Visitors – but only if each is in Practical Training Status. Others include J-2 and L-2 spouses of J-1 and L-1 nonimmigrants, as well as asylees, refugees and applicants to adjust status. This list is far from exhaustive. See 8 CFR §274a.12.

3. Permanent Employer Sponsorship

The overwhelming majority of immigrating foreign workers require both a permanent job and a cooperative U.S. employer who is willing to sponsor the FW through the lengthy work-based greencard process. As noted above, this usually requires a Labor Certification.

EB1 Priority Workers (see item 1 above) are always exempt from this Labor Certification requirement. So also are DOL “Schedule A” workers, comprised of registered nurses, physical therapists, and so-called “Schedule A, Group II” Aliens of Exceptional Ability in the sciences and arts. EB2 workers are also exempt from a Labor Cert if able to secure a National Interest Waiver (NIW).

4. Self-Sponsorship

Some aliens are exempt from both the “current job” and Labor Certification requirements – and thus can “self sponsor” for permanent immigration. These are: (1) EB-1 Aliens of Extraordinary Ability; (2) EB-2 Aliens who qualify for an NIW; and (3) Immigrant Investors.

5. Visas for Specific Types of Workers

The INA (Immigration and Nationality Act) singles out certain specific workers – like multinational executives and outstanding professors and researchers -- for both visa allocation and immigration methodology. And even if not specifically designated in the immigration statutes, a foreign worker’s profession or trade often dictates the best work-based immigration strategy or combination of strategies.

These differing ways to immigrate mean that each foreign worker's situation is also different. Thus, the immigration strategy for a physician is very different from that for a registered nurse or physical therapist. And both differ from the best strategy for an IT worker, skilled mason, Canadian or Mexican business consultant, international manager, athlete or musician.

How Can We Help You?

Our most important task is to carefully evaluate each foreign worker’s education, skills, work experience, and sponsoring U.S. employer if applicable. We typically recommend the best temporary NIV strategy. We always recommend the best long-term immigration strategy resulting in a work-based green card.

As a general rule, CIS demands detailed supporting documentation for work-based nonimmigrants and immigrants alike. Knowledge and experience are essential to presenting this documentation in a complete, orderly and winning manner. Filing procedures are complex. They change constantly. This is no job for amateurs. If a foreign worker is essential to a U.S. employer, call a qualified immigration lawyer.

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Please note: The information at this page is general in nature. It does not create an attorney- client relationship. You rely on it at your own risk. We urge you to consult with qualified immigration counsel for help with your own immigration situation.

Copyright 2005-2008 Everett P. Anderson. All rights reserved.