Employment-Based
Other Practices
Employment-Based Visas
There are a wide range of options available to temporarily or permanently reside and work in the United States.
Contact us to schedule a consultation to discuss the options that may be available to you or your employee(s).
Nonimmigrant (Temporary) Visas
Below are some of the visa options that will permit noncitizens to temporarily reside and work in the United States:
- E-1 Treaty Trader: allows a national (or an executive/supervisory/essential employee of the national or qualifying organization) of a country with bilateral treaties with the United States to be admitted to the United States solely to engage in international trade on his or her own behalf
- E-2 Treaty Investor: allows a national (or an executive/supervisory/essential employee of the national or qualifying organization) of a country with bilateral treaties with the United States to be admitted to the United States when investing a substantial amount of capital in a U.S. business.
- E-3 Specialty Occupation Professionals from Australia: allows a citizen of Australia to be admitted to the United States to perform services in a specialty occupation (a position that requires a degree in a field related to the job duties in order to successfully perform the job duties).
- H-1B Specialty Occupations: allows an individual to be admitted to the United States to perform services in a specialty occupation (a position that requires a degree in a field related to the job duties in order to successfully perform the job duties).
- H-1B1 Specialty Occupation Professionals from Chile and Singapore: allows a citizen of Chile or Singapore to be admitted to the United States to perform services in a specialty occupation (a position that requires a degree in a field related to the job duties in order to successfully perform the job duties).
- H-3 Trainee: allows individuals to receive training in any field of endeavor, other than graduate medical education or training, that is not available in the alien’s home country.
- J-1 Exchange Visitor: allows individuals to participate in exchange visitor programs in the United States.
- L-1 Intracompany Transferee: allows a U.S. employer to transfer an executive/manager/ specialized knowledge employee from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company that does not yet have an affiliated U.S. office to send its executive/manager/specialized knowledge employee to the United States to help establish one.
- O-1 Individuals of Extraordinary Ability: allows an individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, 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 to work in the United States in their field.
- TN for Professionals from Canada and Mexican: allows qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level under the North American Free Trade Agreement (NAFTA). The types of professionals who are eligible to seek admission as TN nonimmigrants include, but are not limited to, accountants, engineers, lawyers, pharmacists, scientists, and teachers.
USCIS also permits certain individuals to work in the U.S. via issuance of an employment authorization document (EAD). These individuals include but are not limited to certain pending green card applicants, certain F-1 students, and H-4 spouses of certain H-1B visa holders.
In addition to the visa options listed above, there may be other options available to live and work in the United States. Contact us to schedule a consultation to discuss the options that may be available to you or your employee(s).
Immigrant Visas (e.g. “Green Cards”)
U.S. immigration law provides a variety of ways to obtain a “green card” to become a lawful permanent resident through employment in the United States.
Depending on the type of green card being pursued, a multi-step, 2 or 3 phase process on behalf of a qualified individual must be followed:
Phase I: Permanent Labor Certification (PERM) filed with the Department of Labor
Phase II: Immigrant Preference Petition (I-140) filed with USCIS
Phase III: Adjustment of Status Application (I-485) filed with USCIS OR
Consular Processing (IV) by the Department of State as a US Embassy
Permanent Labor Certification “PERM”
Most of the employment-based preference categories require an indefinite job offer from a U.S employer that is willing to sponsor the noncitizen employee.
Generally, before a U.S. employer can submit an immigrant preference petition to USCIS (Phase II), the employer must obtain an approved Permanent Labor Certification application (“PERM”) from the U.S. Department of Labor (“DOL”). Prior to filing the PERM with the DOL the employer must conduct a test of the U.S. labor market, including a highly regulated recruitment process in order to demonstrate that there are no available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage and that hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The PERM process is extremely complex and unforgiving and requires an experienced attorney who is familiar with the exact procedural and substantive requirements. Failure to follow the proper protocol can result in the denial of the PERM by the DOL.
Attorney Mendoza has assisted employers in a wide variety of fields including information technology, biotech, finance, engineering, fashion, household employers, and more, successfully navigate the permanent labor certification process.
Immigrant Preference Categories
When filing the Immigrant Preference Petition (Phase II) with USCIS, the employment-based (EB) immigrant preference categories must be specified. Notably, certain preference categories do not require a certified PERM from the DOL before submitting an immigrant preference petition to USCIS. In addition, certain employment-based preference categories permit self-sponsorship for a green card.
An overview of the employment-based (EB) immigrant preference categories include:
- EB-1 Priority Workers: NO labor certification is required for this category. Includes: individuals of extraordinary ability (may self-sponsor); outstanding professors & researchers; and multi-national executives/managers.
- EB-2 Advanced-Degree Professionals and Noncitizens of Exceptional Ability: Labor certification for noncitizens who have exceptional ability or who are members of a profession holding an advanced degree (Master’s degree or higher OR Bachelor’s degree plus 5 years of experience) for a position that requires an advanced degree professional. May request a National Interest Waiver (NIW) of permanent labor certification if the employment will greatly benefit the U.S. (NIW allows self-sponsorship).
- EB-3 Professional, Skilled and Unskilled Workers: Labor certification for noncitizen professionals (Bachelor’s degree or equivalent), skilled workers (2 years of experience/training), and unskilled workers (less than 2 years of experience/training).
- EB-4 Special Immigrants: for noncitizen religious workers, NATO employees, broadcast journalists, international employees of the U.S. government abroad, members of the armed forces, certain physicians, etc.
- EB-5 Immigrant Investors: for noncitizens who make the necessary investment in a commercial enterprise in the U.S. and plan to create or preserve the necessary number of permanent full-time jobs for qualified U.S. workers.
Why does preference category matter? It affects how long an individual must wait until they are able to pursue the final step of the green card process, Adjustment of Status Application or Consular Processing, and therefore the ultimate issuance of the green card. The wait time is based on immigrant visa backlogs due to annual quotas by preference category and country of birth as delineated in the Department of State’s visa bulletin (insert link to visa bulletin or our resources page).
Contact us to schedule a consultation to discuss the options that may be available to you or your employee(s).