Employment Based Immigration

During discussionEmployment Based Immigration allows employers to petition for workers.  These categories, with a few exceptions, require a sponsoring employer and include H-1B, H1B1 and E-3 Specialty Workers, L-1 Intracompany Transferees, TN-NAFTA Professionals, J-1 Exchange Visitors, R-1 Religious Workers, H-2B short-term temporary workers, and O-1 Extraordinary Ability Workers, among others.  Lawful Permanent Residence or “Green Cards” can also be obtained based on employer sponsorship.

 

 

Specialty Occupation Workers

H-1B Workers

The H-1B is a specialty occupation requires a bachelor’s or higher degree or equivalent in the specific specialty as a minimum for entry into the occupation in the U.S.  The H-1B, as with many other employment based visa categories, requires an employer to sponsor the candidate. The maximum validity for an H-1B is 6 years.  However, extension beyond the 6 year maximum validity is possible if a Permanent Labor Certification is filed 365 days before reaching the maximum validity or an Immigrant Petition (I-140) has been approved.  The H-1B allows for direct intent to immigrate to the United States meaning the H-1B worker does not need to maintain residence or ties to their foreign residence and can intent to immigrate by obtaining a Green Card.

The H-1B category includes a Fiscal Year numerical limitation of 65,000 annually, the “H-1B Cap”.  Each year, the “race to the Cap” begins as companies file H-1B cases under the Cap.

The Race to the H-1B Cap

The H-1B Cap is a Fiscal Year Cap of 65,000 beginning with the start of the U.S. Fiscal Year on October 1st. H-1B petitions can be filed 6 months before the starting validity period.  Therefore, petitions under the H-1B Cap can be filed as early as April 1st of each year.  The H-1B Cap trend is closely watched by Attorneys, companies and individual beneficiaries of the H-1B as failure to file under the Cap, means waiting another full year for the new H-1B Cap.  Our Firm specializes in the H-1B Visa and closely monitors the Cap.  We understand the need for advanced planning and are focused on working closely with our client companies to understand their workforce needs.  We develop strategies to advance plan for the H-1B Cap so that your company can meet its workforce management needs for the upcoming year.  Our staff has more than 12 years of experience with the H-1B program and we leverage that experience to help your company plan for workforce management success.

Spouses and Dependents-Spouses and dependents of the H1B1 are eligible for the H4.  H4 spouses cannot work in the United States.

H1B1

The H1B1 is a fast-track H-1B for citizens of Chile and Singapore allowing citizens of these countries to apply for this visa category directly at the US Consulate.  Aside from the ability to fast-track, the H1B1 also carries its own numerical limitation meaning that those who qualify for the H1B1 can avoid the normal H-1B Cap.  In past years, this separate H1B1 Cap has not been met allowing H1B1 candidates to apply for this category throughout the entire fiscal year.   These special provisions, however, carry a price.

The H1B1 does not allow for immigrant intent requiring the H1B1 beneficiary to maintain their ties to their foreign country.  Failure to demonstrate ties to the home country can result in denial of the H1B1. Admission under the H1B1 is also limited to one year increments.  In late-2012 multiple denials of the H1B1 in Singapore based on lack of sufficient ties to the foreign country highlight the fact that the H1B1 candidates ties to Singapore or Chile must be strong to ensure approval.

In addition, unlike the H-1B, the H1B1 does not allow for direct portability to another employer requiring the H1B1 candidate who wishes to change employers to apply anew for an H1B1 and await approval before starting work for a new employer.

Spouses and Dependents-Spouses and dependents of the H1B1 are eligible for the H4.  H4 spouses cannot work in the United States.

E-3

The E-3 is a specialty occupation category similar to the H-1B but the E-3 is reserved for nationals of Australia.  The E-3 requires a baccalaureate degree in a specialty occupation and allows the beneficiary to apply directly at the U.S. Consulate abroad.

Spouses and Dependents-Unlike the H-1B, spouses and dependents of the E-3 may work in the United States after applying for and approval of an Employment Authorization Document (EAD).

L-1 Intracompany Transferees

An L-1 Intracompany Transferee is granted to a candidate who is employed abroad for one year of the three years preceding the application for admission in the L category by a U.S. company’s parent, branch, subsidiary, or affiliate.

L-1A Manager/Executive-To qualify as an L-1A Manager/Executive the candidate must have been a manager, executive or have worked in a specialized knowledge category abroad.  The individual does not have to be transferred to the United States in the same category held abroad.  Thus, a manager abroad can be transferred to the U.S. to fill and Executive level position or a specialized knowledge professional abroad can be transferred to the U.S. pursuant to a promotion to a Manager level position.

An L-1A Manager manages the organization, department, subdivision, function or component of the organization and supervises and controls the work of professionals, other supervisory workers, or manages and essential function within the organization, has the authority to hire and fire or recommend personnel actions and exercises discretion over day-to-day operations of the actions managed.

An L-1A Executive directly manages the organization or a major component of the organization, establishes goals and polices and exercises wide latitude in discretionary decision making.  The Executive would receive only basic supervision or direction from more senior Executives, company directors or shareholders.

The L-1B specialized knowledge category is one of much change in recent years.  Specialized knowledge is defined as one with special knowledge of the company products, services, research, equipment, techniques, management and their application in international markets or advanced knowledge of company processes and procedures.  The L-1B specialized knowledge is very narrowly drawn and requires a strong showing that the candidate possesses the above characteristics.

Blanket L-The Blanket L allows companies who meet the Blanket L criteria to obtain approval of the blanket from the service center.  Once the blanket is approved at the service center, employees of the company who qualify under the L-1A or L-1B can apply directly at the U.S. Consulate abroad under the company’s approved Blanket L.

In order to qualify for the Blanket L a company must:

  • have an office which has been doing business in the U.S. for at least one year;
  • have 4 or more domestic and foreign branches, subsidiaries or affiliates engaged in commerce trade or services;
  • have a combined U.S. annual sales of $25 million, a U.S. workforce of 1,000, or received approval of at least 10 L petitions in the last 12 months.

Spouses and Dependents-Spouses and dependents of the L-1 are granted an L-2.  The L-2 spouse may work in the United States with the application and approval of an Employment Authorization Document (EAD).

TN-NAFTA Professionals

The TN is reserved for citizens of Mexico and Canada who are performing professional activities which generally require a Bachelor’s Degree or credentials demonstrating status as a profession.  NAFTA Professions (add link here to http://www.nafta-sec-alena.org/en/view.aspx?x=343&mtpiID=147#Ap1603.D.1)  include many professions such as Accountants, Architects, Computer Systems Analysts, Economist, Engineer, Graphic Designer, Interior Designer, Lawyer, Management Consultant, Scientific Technologist,  Technical Publications Writer, Chemist, Meteorologist, among others.

The TN has some advantage over other categories such as the H-1B.  For instance, the TN does not have a limitation on stay.  However, the TN does not allow for immigrant intent meaning that each application for a TN, or entry at the port of entry under the TN, is examined to determine if the applicant is planning on immigrating permanently to the United States.  However, it is important to note that the approval of an immigrant petition (I-140) will not necessarily result in a denial of admission under the TN as long as the intent of the TN applicant is to remain on the TN only temporarily.

J-1 Exchange Visitors

The J-1 Exchange Visitor program is for professor, research scholar, short-term scholar, bona fide trainee or intern, college or university student, teacher, secondary school student, foreign physician, international visitor, government visitor, camp counselor, au pair, or summer student in a travel/work program.  The J-1 Exchange Visitor must have a residence abroad for the duration of their J-1 training, have sufficient funds to support their funds and must be fluent in English.

R-1 Religious Workers

 

H-2B Short-Term Temporary Workers

O-1 Extraordinary Ability Workers

The O-1 Visa is for a person with extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

The O-1 has 2 categories, the O-1A and O-1B.

O-1A is for individuals with an extraordinary ability in the sciences, education, business, or athletics

O-1B is for individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry

Those accompanying the O-1 artist or athlete to assist with a specific event or performance qualify for the O-2 if the assistance will be an integral part of the O-1A ‘s activity or essential to the O-1B’s production.

Spouses and children of O-1’s and O-2’s are eligible for the O-3 Visa.

LAWFUL PERMANENT RESIDENCE (GREEN CARD) BASED ON EMPLOYMENT

The Employment Based Green Cards include

EB-1-Priority Workers includes:

  • Persons with Extraordinary Ability;
  • Outstanding Professors and Researchers; and
  • Multinational Executives.

 

EB-2-Second Preference Category includes:

Members of the professions holding advanced degrees or aliens of exceptional ability are those with a Master’s degree or a Bachelor’s degree plus five years of experience.

EB-3 Third Preference Category includes:

Skilled workers, professionals and other workers are those with a Bachelor’s degree or skilled workers

EB-4 Fourth Preference Category includes Special Immigrants

Religious Workers,  Broadcasters,  Iraqi/Afghan Translators,  Iraqis Who Have Assisted the United States, International Organization Employees,  Physicians,  Armed Forces Members,  Panama Canal Zone Employees,  Retired NATO-6 employees,  Spouses and Children of Deceased NATO-6 employees.

EB-5 Fifth Preference Category includes:

Investors in a targeted rural or high-unemployment area, and investors in regional centers

Regional Centers Listing:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d765ee0f4c014210VgnVCM100000082ca60aRCRD&vgnextchannel=facb83453d4a3210VgnVCM100000b92ca60aRCRD

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United States

Scarborough Law, L.L.C.
6622 Southpoint Drive South
Suite 330
Jacksonville, FL 32216
Phone:904-389-0055
Fax: 904-339-9108
Email: info@ssimmigration.pro

India

Scarborough Immigration Services Pvt. Ltd.
The Nest, RC Junction
Trivandrum-6950 35 India
Ph. : +91 98955 98755
Email: info@ssimmigration.pr