United States immigration laws and policy recognize the importance of filling skills shortages and the benefits of bringing in individuals with specialist knowledge to contribute to the country’s economy.
Corporate immigration lawyers use their expertise and knowledge of immigration and other laws to identify appropriate visa types and to draft complex documentation to assist employers fill roles with competent, skilled workers.
Employment based immigration
Various employment-based visa types facilitate temporary or permanent residency in the United States for skilled foreign nationals and may also allow their spouses and unmarried children under 21 years to join them. Each have specific eligibility criteria, compliance requirements and restrictions.
The number of visas granted each fiscal year is capped for each category, with visas issued chronologically according to ‘priority date’ (the filing date of an applicant’s petition), until the annual limit is reached.
Temporary categories include visas for intra-company transfers (L), athletes, entertainers, and skilled performers (P), religious workers (R), diplomatic workers (A) and special occupations such as nursing and agriculture (H).
Some immigrants who come to the United States as temporary workers may subsequently qualify to become permanent residents.
Permanent employment-based immigration visas (green cards) may be available for individuals who meet the relevant requirements in one of the following categories:
Employment First Preference (E1) – priority workers and persons of extraordinary talent who qualify in one of the following sub-groups:
- Persons with extraordinary ability in sciences, art, education, business or athletics and who can show national or international recognition in their relevant field of expertise.
- Outstanding professors and researchers who are recognised internationally, with at least three years teaching or research experience.
- Multinational managers or executives who have been employed for one out of the three preceding years by an overseas affiliate, parent, subsidiary or branch of the U.S. employer.
Employment Second Preference (E2) – professionals holding advanced degrees and persons of exceptional ability who qualify in one of the following sub-groups:
- Professionals – members of certain professions who hold advanced degrees (beyond a baccalaureate degree) relevant to that area.
- Foreign nationals with exceptional ability in sciences, arts or business.
Employment Third Preference (E3) – skilled workers, professionals and unskilled workers (other workers), qualifying within the following sub-groups:
- Skilled workers with a minimum of two years training or work experience (not temporary or seasonal) capable of filling a position for which there is a skills shortage.
- Professionals – members of professions whose job requires at least a U.S. university or college baccalaureate degree or foreign equivalent, and who are undertaking work for which there is a skills shortage.
- Unskilled workers capable of filling positions that require less than two years training or experience (not temporary or seasonal) for which there is a skills shortage.
Employment Fourth Preference (E4) – certain special immigrants, for example religious workers, broadcasters in the United States employed by the International Broadcasting Bureau of Governors or grantee, certain employees or former employees of the U.S. Government Abroad, Iraqi and Afghan interpreters/translators, certain foreign medical graduates.
Employment Fifth Preference (E5) – immigrant investors in new commercial enterprises that will stimulate the U.S. economy and create jobs.
An immigration expert will explain the relevant eligibility criteria for each category and help determine whether you or somebody you know may qualify for a specific visa.
Employer petitions and process
Employers wishing to hire foreign workers to fill a specified role will need to petition on behalf of the proposed worker after obtaining certification from the Department of Labor that the position identified could not be filled by a qualified U.S. citizen for a reasonable wage.
Individuals applying in the Employment First preference category may file their own petition and applications in the Employment Fourth Preference category do not require labor certification.
An Immigrant Petition for Alien Worker in the relevant category is filed with the U.S. Citizenship and Immigration Services (USCIS) and the date of filing the petition is referred to as the priority date.
Approved petitions are forwarded to the National Visa Center (NVC) and assigned a case number. The NVC will liaise with the applicant or his/her lawyer to confirm when an application may be lodged and to provide information about processing instructions, documentation, fees, visa interview, medical examination, and vaccination requirements.
Immigration law in the United States is complex and regulations evolve frequently. Employers are subject to ongoing compliance obligations with respect to the relevant visa and may need to register with specific organisations.
The processing of a petition or visa application can be delayed due to procedural or administrative errors. Failure to carefully follow instructions can have a significant impact on the proposed employer and worker awaiting the grant of a visa.
Working with a corporate immigration lawyer can provide many benefits by ensuring the correct visa type is identified and the best pathway chosen. Our team has a comprehensive understanding of immigration law and processes and work with corporates and immigrants seeking temporary and permanent residency, helping you achieve your workplace and immigration objectives.