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Employment-Based

Employment-Based

The Costas Network Law Center provides immigration services to employers seeking to hire and retain international talent, as well as individuals seeking work in the United States. There are options for individuals who are abroad and seeking to come to the United States, as well as those who are already in the United States and seeking to change status.

We work with both businesses and individuals choose the visa that best suits their needs. We provide assistance throughout the entire process including filling out applications, gathering documents, labor certification, and interview preparation.

Employment-based visas can be divided into two categories: immigrant visas and temporary work visas. 

EMPLOYMENT-BASED IMMIGRANT VISAS 

If you are looking to reside in the United States permanently, there are numerous ways to obtain a green card through employment. 

VISAS FOR TEMPORARY WORKERS

If you are looking to come to the United States to work for a temporary period of time, or are looking to find a visa to transition to permanent residency, there are many temporary work visas that may be available to you.

 


 

EMPLOYMENT-BASED IMMIGRANT VISAS

If you are looking to reside in the United States permanently, there are numerous ways to obtain a green card through employment.  We work with both businesses and individuals to determine which immigrant visa is the best option for the intending immigrant.  We provide assistance throughout the entire process including filling out applications, gathering documents, labor certification, and interview preparation.

Employment-based immigrant visas are divided into five categories. The time it takes for an individual to get a green card will depend on the preference category, as well as the person’s country of origin. Most employment-based immigrant visas are based on a job offer and require an employer sponsor. Generally, employment-based immigrant visas require a three-step process:

  • The employer must obtain a labor certificate from the Department of Labor establishing that there are no qualified workers in the United States for the position.
  • The employer must then file a petition on behalf of the foreign employee.
  • Once the petition is approved, and when an immigrant visa is available, the foreign employee may file an application to adjust status (if in the United States) or an application for an immigrant visa (if abroad).

There are certain visas that do not require the above process.  We work with our clients to determine whether an individual can qualify for an exemption to the three-step process, making the path to a green card quicker.

EB-1 ALIENS WITH EXTRAORDINARY ABILITY, OUTSTANDING PROFESSORS AND RESEARCHERS & MULTINATIONAL EXECUTIVES AND MANAGERS

The first preference category is for those with extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors and researchers; and multinational managers and executives.  This preference category does not require labor certification.

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The first preference category is subdivided into three categories: those with extraordinary ability, outstanding professors and researchers, and multinational managers and executives. While most employment-based immigrant visas require certification from the Department of Labor, the first preference category does not require labor certification.

sEB-1(1): Extraordinary Ability

The first subcategory is for those persons with extraordinary ability in the sciences, arts, education, business, or athletics. The applicant must show that he or she has sustained national or international acclaim and is recognized in his or her field of expertise. This may be evidenced by a major achievement (i.e., a Nobel Prize, Olympic Medal, Pulitzer, Oscar) or by a combination of other criteria, such as major prizes or awards, published material about or by the applicant, evidence of commercial success, and so forth. It is intended for the very best in a given field.

This subcategory does not require a job offer. The applicant may therefore petition for oneself.

EB-1(2): Outstanding Professors and Researchers

Applicants under this subsection must demonstrate outstanding international reputation in an academic field. This can be shown by major prizes or awards, published material about the alien’s work, published books or articles by the alien, and so forth. The applicant must have at least three years of teaching and/or research experience in the academic field.

This subcategory requires a job offer and it must be in the form of a tenure track teaching position or a comparable research position at a university or other institution of higher education. The employer must file a petition with U.S. Citizenship and Immigration Services.

EB-1(3): Multinational Executives and Managers

This subcategory is for managers or executives of multinational companies. The alien must have been employed by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer for at least one of the three years preceding the application.

Applicants must have a job offer from a U.S. employer and the employer must file a petition on behalf of the alien.


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EB-2 ALIENS WITH ADVANCED DEGREES AND EXCEPTIONAL ABILITY

This preference category is for those with an advance degree or for those with extraordinary ability in the sciences, arts, or business. Those who can show their work is in the national interest may be able to waive the labor certification process. 

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The second preference category requires an advanced degree or exceptional ability in the sciences, arts, or business.

An advanced degree is at least a Master’s degree, or in some cases, a Bachelor’s degree plus at least five years of work experience.  The advance degree or its equivalent must be required by the job offered.

Exceptional ability requires a level of expertise that is significantly above that ordinarily encountered in the sciences, arts, or business. If the applicant can establish that his or her employment in the United States would benefit the nation, the applicant may apply for a National Interest Waiver, which would waive the labor certification requirement and allow the applicant to self-petition. Examples of work that may qualify for a National Interest Waiver include medical research, national defense work, and so forth.

There is also a second exception to labor certification within this category for Schedule A occupations.  Schedule A occupations are considered pre-certified, as the Department of Labor has found there is shortage of qualified workers for such occupations.  The labor certificate can therefore be directly filed with U.S. Citizenship Services with the petition and green card application, making the application process much shorter.  Schedule A occupations include physical therapists, professional nurses, and persons of exceptional ability in science or the arts including college and university teachers.

With the exception of those granted a National Interest Waiver, a job offer is required for this preference category. The employer must obtain certification from the Department of Labor and must also file a petition on the alien employee’s behalf with U.S. Citizenship and Immigration Services, unless the applicant qualifies for a National Interest Waiver or has a Schedule A occupation.


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EB-3 PROFESSIONALS AND SKILLED & OTHER WORKERS

The third preference category is subdivided into three categories: professionals, skilled workers, and unskilled workers. 

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The third preference category is subdivided into three categories: professionals, skilled workers, and unskilled workers.

To qualify under the professional subcategory, the job must require at least a bachelor’s degree. This requirement may not be substituted with education and/or experience. The skilled workers category requires at least two years of training or experience. The other workers category involves undertaking unskilled labor that requires less than two years of training or experience.

Like the second preference category, this category includes a subsection of Schedule A Occupations.  For a job to fall within this category, the Department of Labor has determined that there is a shortage of qualified U.S. workers in the occupation. With Schedule A occupations, the employer undergoes a much less vigorous labor certification process.  The labor certificate is considered pre-certified and does not need to be filed with the Department of Labor.  Instead the labor certificate can be directly filed with U.S. Citizenship Services with the petition and green card application, making the application process much shorter.  Schedule A occupations include physical therapists, professional nurses, and persons of exceptional ability in science or the arts including college and university teachers.

All three subcategories require a job offer. They further require labor certification from the Department of Labor (with the exception of Schedule A occupations) and a petition filed by an employer with U.S. Citizenship and Immigration Services.


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EB-4 SPECIAL IMMIGRANT VISAS

This category is meant for specific special immigrants, including religious workers, physicians, armed forces members, Iraqi/Afghan Translators, amongst others.

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The fourth preference category regards specific special immigrants. Special immigrants include:

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

In general, the employer must submit a petition on the foreign employee’s behalf. However, there are certain situations where an applicant may self-petition.


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EB-5 THE IMMIGRANT INVESTOR

The last preference category is for those individuals who are willing to make a substantial investment into a commercial enterprise in the United States. 

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The EB-5 category was created to stimulate the U.S. economy through investment and job creation. An EB-5 applicant must make a substantial investment in a new commercial venture. At a minimum, the applicant is required to invest $1,000,000, or an applicant may invest $500,000 in a rural area or an area of high unemployment. The investment must create at least ten new full-time jobs within two years.

An EB-5 investor (and derivative family members) is initially granted conditional permanent residency for a two-year period. After the two-year period, the conditions may be removed upon a showing that the enterprise and investment was sustained and that ten jobs were created, amongst other requirements. Once removed, the EB-5 investor and derivative family members will receive permanent resident status.

The applicant must file his or her own petition. Once approved, the applicant may file an application to adjust status or an application for an immigrant visa depending on whether the applicant is in the United States or abroad. As previously noted, upon reaching two years, the applicant must file a petition to remove conditions. If approved, the conditions are removed and the EB-5 investor will be allowed to permanently work and live in the United States.

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VISAS FOR TEMPORARY WORKERS

 If you are looking to come to the United States to work for a temporary period of time, or are looking to find a visa to transition to permanent residency, there are many temporary work visas that may be available to you.

Our firm helps businesses and individuals choose the visa that best suits their needs and will provide assistance throughout the application process.

B-1 Business Visitor

This visa is for those who want to visit the United States temporarily for a business purpose.  This can include attending a conference, participating in trainings, consulting with associates, negotiating a contract and so forth.

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The B-1 visa allows an individual to temporarily visit the United States to participate in business activities.  These activities can include:

  • Consulting with associates
  • Attendance at a conference or convention
  • Settling an estate
  • Engaging in contract negotiations
  • Participating in short-term training

To obtain a B-1 visa an individual must show that the purpose of the trip is to participate in a business activity and that he or she plans to remain for a limited period of time.  The individual must also show sufficient funds to cover trip-related expenses.  Lastly, the individual must demonstrate that he or she has a residence abroad that he or she intends to return to at the end of the visit.  Certain B-1 visitors may need employment authorization to conduct their intended business.

Typically a person with a B-1 visa is authorized to stay in the United States for one to six months.  The person can then request an extension of an additional six months if needed.

Children and spouses of B-1 holders cannot obtain a dependent visa.  They must instead file and qualify for a B-2 (tourist) visa.


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< E-1 Treaty Trader

The E-1 non-immigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States solely to engage in international trade on his or her own behalf.  Certain employees of such a person or of a qualifying organization may also be eligible for this classification.  (For dependent family members, see “Family of E-1 Treaty Traders and Employees” below.)

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See U.S. Department of State’s Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation.
Who May File for Change of Status to E-1 Classification
If the treaty trader is currently in the United States in a lawful nonimmigrant status, he or she may file Form I-129 to request a change of status to E-1 classification.  If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 on the employee’s behalf.
How to Obtain E-1 Classification if Outside the United States
A request for E-1 classification may not be made on Form I-129 if the person being filed for is physically outside the United States.  Interested parties should refer to the U.S. Department of State website for further information about applying for an E-1 nonimmigrant visa abroad.  Upon issuance of a visa, the person may then apply to a DHS immigration officer at a U.S. port of entry for admission as an E-1 nonimmigrant.
General Qualifications of a Treaty Trader
To qualify for E-1 classification, the treaty trader must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation
  • Carry on substantial trade
  • Carry on principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification.

Trade is the existing international exchange of items of trade for consideration between the United States and the treaty country.  Items of trade include but are not limited to:

  • Goods
  • Services
  • International banking
  • Insurance
  • Transportation
  • Tourism
  • Technology and its transfer
  • Some news-gathering activities

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E-2 Treaty Investors

To qualify for an E-2 visa, a treaty trader must be a national of a country with which the United States maintains a treaty of commerce and navigation.  The individual must invest a substantial amount of capital into a U.S. business and must be seeking to enter the United States to develop and direct the investment. The individual may invest into a new enterprise, purchase an established enterprise or invest in a franchise.

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There is no minimum investment amount. However, the investment must be substantial, meaning that the investment: is substantial in relationship to the total cost of either purchasing or establishing an enterprise; is sufficient to ensure the E-2 nonimmigrant’s commitment to the success of the enterprise; and of a magnitude to support the chance that the treaty investor will successfully develop and direct the enterprise.

A treaty investor may petition for his or her employees. The employee must be of the same nationality and must either be engaging in executive or supervisory duties, or have special qualifications. If the employer is not an individual, the enterprise or organization must be at least 50 percent owned by persons who have the same nationality of the treaty country.

Treaty investors are allowed a maximum initial stay of two years. They may request extensions in increments of up to two years each. Unlike many visas, there is no limit to how many extensions one may request.  However, one must be able to show intent to return to his or her home country.

Treaty investors and their employees may be accompanied or followed by a spouse and unmarried children under the age of 21. Spouses may apply for work authorization and may seek employment without restriction.


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H1-B Specialty Occupations

Individuals with at least a bachelor’s degree (or equivalent work experience) may be eligible for this visa.  This visa is commonly used as a stepping stone to receiving permanent residency also known as a green card.

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The H-1B visa is for specialty occupations and is meant for professional positions. The defining requirement for this category is a college or a university degree or the foreign equivalent. In certain circumstances an applicant may qualify based on experience.

Examples of professional workers who fall within this category include: computer software engineers, architects, accountants, pharmacists, researchers, lawyers, and physicians.

To obtain a H-1B visa, the employer must submit two filings. First, the employer must file an application with the Department of Labor that lays out basic information about the proposed employment such as rate of pay, period of employment, and work location. The employer must also make certain attestations. Once the application is approved by the Department of Labor, the employer must then file a petition with U.S. Citizenship and Immigration Services.

Those with a H-1B visa are initially allowed to remain in the United States for three years and may receive an extension for up to three years, for a maximum stay of six years. There are exceptions for those who are waiting for an immigrant visa (green card). For these reasons, many H-1B nonimmigrants use their visa as a stepping stone to begin the process of acquiring an employment-based permanent immigrant visa, also known as a green card. It allows the H-1B holder to work in the United States while he or she waits for an immigrant visa. It also provides employers a three-year period to determine if they would like to petition for an employee.

Because there is a cap on the number of H-1B visas, it is important for employers to file petitions by April 1, if possible.

An H-1B holder’s spouse and unmarried, minor children may apply for a visa under the H-4 category to accompany or join the H-1B holder. H-4 holders are not allowed to work, except under certain circumstances, but may open bank accounts and obtain a driver’s license. H-4 holders may also attend school.


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H2-A/H2-B Seasonal Workers

These visas are available for seasonal and temporary workers, including those in agriculture. 

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H-2A and H-2B visas are available for those who are offered a job that is temporary, seasonal in nature, for a one-time occurrence, or is based on peakload or intermittent need. The employer must be able to show that there are not sufficient U.S. workers who are able, willing, qualified and available to do the temporary work.

H-2A visas cover work that is agricultural in nature and H-2B visas cover all other types of temporary work. Only nationals of certain countries are eligible to apply for these visas. These include: Canada, El Salvador, Guatemala, Honduras, Jamaica, Mexico, and Poland, amongst many others.

To apply, the employer must submit a temporary labor certification application to the Department of Labor. Once approved, the employer submits this certification and a petition to U.S. Citizenship and Immigration Services.

A spouse and unmarried children may also apply under the H-4 category. H-4 holders are not allowed to work but may open bank accounts and obtain a driver’s license.


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Intracompany Transferees (L)

The L visa is available to executives, managers, and employees with specialized knowledge who work in a multinational company.  It allows the company to transfer the employee from a position abroad to a position with a U.S. affiliate, branch, parent, or subsidiary.  This visa can also be used to set up an office within the United States.

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Intracompany Transferees (L)

 

The L visa allows a U.S. employer to transfer an employee from one of its foreign offices to an office located within the United States. It also allows a foreign company to send an employee to the United States to establish an office.

The employee must be coming to the United States in an executive or managerial capacity or have specialized knowledge relating to the organization’s interests. Generally, the employee should have been working for the employer for one year within the three years immediately preceding entry to the United States.

To apply, the employer must file a petition on the employee’s behalf to U.S. Citizenship and Immigration Services.

L visa holders are allowed a maximum initial stay of three years. Those who are on an L visa to establish a U.S. office are allowed a maximum initial stay of one year. L nonimmigrants may request extension in increments of two years, with a maximum of five or seven years, depending on the L classification.

L nonimmigrants may be accompanied by their spouse and unmarried children under the age of 21. Spouses may apply for work authorization and there is no restriction where the spouse may work.

L non-immigrants may be eligible for a permanent immigrant visa, also known as a green card, based on their position as a manager or an executive.


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Extraordinary Ability or Achievement (O)

This visa is intended for those with extraordinary ability in entertainment, the arts, business, athletics, or science.

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Individuals with Extraordinary Ability or Achievement (O)

 

The O visa is for those individuals with extraordinary ability in the sciences, arts, education, business, or athletics, or for those individuals with a demonstrated record of extraordinary achievement in the movie or television industry.

The individual must be able to show that they have risen above others in their field and have received national and international recognition for their work. This visa allows the individual to temporarily come to the United States to work in his or her area of extraordinary ability.

To obtain an O visa, a company or organization must submit a petition to U.S Citizenship and Immigration Services. With certain exceptions, the petition must be accompanied by a written advisory opinion from a peer group related to the individual’s field of expertise and a written contract between the petitioner and the person seeking the visa.

For an O visa, the initial period of stay is up to three years and extensions may be granted in increments of up to one year.

Those accompanying O visa holders to provide support services in the fields of athletics, entertainment, and motion picture and television production may receive an O-2 visa. Family members of O-1 and O-2 visa holders are eligible to apply for an O-3 visa. While they may not work under this classification, an O-3 holder may study in the United States without a student visa.

O nonimmigrants may be eligible for a permanent immigrant visa, also known as a green card, based on their extraordinary ability.


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Athletes and Entertainers (P)

The P visa is meant for professional athletes, artists and entertainers.

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Athletes and Entertainers (P)

 

The P visa category is for those who wish to come to the United States to perform in athletics or entertainment, either individually or as part of a group. The P visa category also applies to those who are coming to the United States to perform, teach, or coach under a program that is culturally unique.

P visa holders are permitted to come to the United States for the duration necessary to participate in a specific competition, event, or performance. Extensions may be granted in order to continue or to complete the event, competition, or performance.

To apply for a P visa, a company or organization must file a petition with U.S Citizenship and Immigration Services. With certain exceptions, the petition must include a written advisory opinion from an appropriate labor organization regarding the individual’s qualifications and the nature of the work to be performed. It must also include the service contract.

Support personnel may also receive a P visa, as can spouses and unmarried children under the age of 21. Support personnel may include coaches, trainers, lighting technicians, camera operators, and so forth.


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Religious Workers (R)

This visa is available to individuals who are coming to the United States to work at least part time at a non-profit religious organization. R visa holders may be eligible for permanent residency (a green card).

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Religious Workers (R)

 

The R visa is available to an individual who is coming to the United States to work at least part time at a non-profit religious organization.  The individual must intend to work as a minister or in another religious vocation or occupation.

To qualify, the visa holder must have been a member of a religious denomination that has a non-profit religious organization in the United States for at least two years prior to filing. The employer must file a petition with U.S. Citizenship and Immigration Services.

An R visa holder may be granted an initial period of stay for up to 30 months. Subsequent extensions may be granted for up to an additional 30 months, for a maximum stay of 60 months.

An R nonimmigrant’s spouse and unmarried children under the age of 21 may apply for R-2 classification. Those in an R-2 classification cannot receive employment authorization.

An R visa holder may be eligible for lawful permanent residency (a green card).


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Practical Training

While not a visa, practical training allows students or recent graduates the ability to work for 12 months.  Those with STEM (science, technology, engineering or math) degrees can receive an additional 17 months of work authorization. Practical training is available to those who are in the United States on a student (F) visa.

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Practical Training

 

Curricular Practical Training (CPT) and Optional Practical Training (OPT) are options for foreign students on an F visa. These practical training opportunities allow students to work temporarily in an area related to their field of study.

CPT allows a student to work while he or she is enrolled in school. The school must approve the employment and will provide the student with a certificate of eligibility. If a student has 12 months or more of full-time CPT, he or she will be ineligible for OPT, but part-time CPT will generally not affect OPT.

OPT allows a student to work after he or she has completed school. The student must apply for work authorization with U.S. Citizenship and Immigration Services and must also receive a certificate of eligibility from his or her school.

A student may apply for 12 months of OPT. Those with a STEM degree (a degree in science, technology, engineering, or mathematics) may apply for a 17-month extension.  To do so, the student’s employer must use the E-Verify program.


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