America Is Just around the Corner - Employment-Based Visa Strategies with an Eye Towards Feasability
Are you looking for a work visa for USA? Scarcia-Scheel Law Firm specializes in employment-based nonimmigrant visas and Green Cards. There are many employment-based nonimmigrant visa and Green Card options available depending on a foreign nationals’s education, work experience, professional achievements, skills, or the right combination thereof. Contact us for a brief and non-binding consultation and let us explore the various avenues to lawful residency in the USA. Immigration law is a complex and constantly changing area of the law. Scarcia-Scheel Law Firm P.C. understands the finer points of immigration law and is dedicated to helping businesses and individuals fulfil their American dream.
Employment-Based Immigrant Visas (Green Cards)
Employment-based Green Cards are divided into the five subcategories listed below.
The first preference category is for so-called priority workers and is divided into the following three subclasses:
An EB-1A (Employment-Based First Preference Category A) is a type of green card category available to individuals with extraordinary ability in the fields of science, arts, education, business, or athletics. It is a self-petitioning category, meaning that applicants can file the petition on their own behalf without the need for a job offer or employer sponsorship.
To qualify for an EB-1A green card, an individual must demonstrate sustained national or international acclaim in their field, which has been recognized through extensive documentation. The applicant must provide evidence of their extraordinary ability and show that they have risen to the very top of their field. Examples of evidence include major awards or prizes, membership in prestigious organizations, published material about the individual’s work, participation as a judge or reviewer in their field, original contributions of major significance, and high salary or remuneration for their work.
In addition to meeting the extraordinary ability criteria, EB-1A applicants must also demonstrate that they will continue to work in their field of expertise in the United States and that their presence will substantially benefit the country. While a job offer is not required, the applicant should provide a plan outlining their intended work in the U.S.
The EB-1B immigrant visa category is a preference category of the employment-based immigrant visa program in the United States. It is designed for outstanding professors and researchers who are internationally recognized in their academic field.
To be eligible for an EB-1B visa, applicants must demonstrate sustained international acclaim and recognition in a specific academic area. The eligibility criteria include meeting at least two out of the following requirements:
- Receipt of major international awards or prizes in the academic field.
- Membership in associations that require outstanding achievements for membership.
- Published material about the applicant’s work in professional or major trade publications.
- Participation as a judge of the work of others in the same or similar academic field.
- Original scientific or scholarly research contributions to the field.
- Authorship of scholarly articles in professional journals or other major media.
- Display of the applicant’s work at artistic exhibitions or showcases.
- Leading or critical role in distinguished organizations.
Applicants need three years’ minimum of either teaching or research experience in their field and must be entering the U.S. to accept a specific tenured or tenure-track teaching or research position at a university or institution of higher learning. Applicants will need a specific job offer from a qualified employer to qualify.
The EB-1C visa is a category of employment-based immigrant visa in the United States. It is specifically designed for multinational executives or managers who are being transferred from a foreign company to a related U.S. company.
To be eligible for an EB-1C visa, the applicant must meet certain criteria:
Multinational Executive or Manager: The applicant must have been employed as an executive or manager in a foreign company for at least one continuous year within the three years immediately preceding your application.
Employment in a Related U.S. Company: The applicant must be seeking to enter the United States to continue working as an executive or manager for a related U.S. company. The U.S. company can be a subsidiary, affiliate, or branch office of the foreign company where the applicant was previously employed.
Executive or Managerial Capacity: The applicant must be entering the U.S. company to work in an executive or managerial capacity. This means the applicant will have significant decision-making authority and oversee the company’s operations or a major component of it.
Intent to Continue Employment: The applicant must demonstrate that he or she intends to continue working in the executive or managerial capacity for the U.S. company upon entry into the United States.
The EB-2 green card category is an employment-based immigrant visa classification and intended for foreign nationals who possess advanced degrees or exceptional ability in their field of expertise.
To qualify for an EB-2 Green Card, applicants must meet certain criteria. There are two main subcategories within the EB-2 classification:
EB-2(A): Advanced Degree Professionals This category is for individuals who have earned an advanced degree beyond a bachelor’s degree, or its equivalent. The advanced degree must be related to the job offer they have or the field in which they have exceptional ability. Alternatively, individuals with a bachelor’s degree and at least five years of progressive work experience in their field may also qualify.
EB-2(B): Exceptional Ability: This category is for individuals who possess exceptional ability in the sciences, arts, or business. Exceptional ability refers to a degree of expertise significantly above the ordinary, typically demonstrated by academic degrees, professional certifications, achievements, or recognition in the field. The requirements are slightly less strict than in comparison to the “extraordinary” ability in the EB-1 category above.
In addition to meeting the eligibility requirements, EB-2 applicants must have a valid job offer from a U.S. employer. The employer typically needs to obtain a labor certification from the U.S. Department of Labor to demonstrate that there are no qualified U.S. workers available for the position being offered. However, if the applicant’s presence will benefit the U.S. in the future, he or she may be able to apply without having a job offer or labor certification through a so-called national interest waiver.
EB-2 green card applicants must also file an Immigrant Petition for Alien Worker (Form I-140) with the U.S. Citizenship and Immigration Services (USCIS). Once the petition is approved, applicants can proceed with the final step of the green card process, which involves filing an application for adjustment of status (if already in the U.S.) or an immigrant visa application at a U.S. embassy or consulate abroad.
It’s important to note that the EB-2 category typically experiences high demand, and there are annual numerical limitations on the number of green cards that can be issued in this category. Therefore, there may be a waiting period for visa numbers to become available for EB-2 applicants, particularly for certain countries with high demand.
The EB-3 immigrant visa is designed for foreign nationals who have the skills, education, and experience necessary to fill positions in occupations for which there is a shortage of qualified workers in the United States. The EB-3 visa is divided into three subcategories:
Skilled Workers: This subcategory is for individuals who have at least two years of job experience or training in a particular field and whose skills are not readily available in the United States.
Professionals: This subcategory is for individuals who possess a bachelor’s degree or its foreign equivalent and whose profession requires at least a bachelor’s degree.
Other Workers: This subcategory is for individuals who perform unskilled labor requiring less than two years of training or experience, but for which there is still a shortage of available workers in the United States.
To apply for an EB-3 immigrant visa, the individual must have a valid job offer from a U.S. employer who is willing to sponsor them. The employer typically needs to obtain a labor certification from the U.S. Department of Labor to demonstrate that there are no qualified U.S. workers available for the position.
The fourth preference category of Green Cards through employment is for so-called special immigrants, including, inter alia, religious workers, former U.S. government workers, and broadcasters.
This is a Green Card for investors who invest a minimum of $800,000 to $1050,000 in a U.S. business, thereby creating at least ten full-time jobs for U.S. workers. The minimum amount depends on the location of the U.S. business.
The EB-5 Investor Green Card, also known as the EB-5 Immigrant Investor Program, is a program created by the United States government to encourage foreign investment and job creation in the country. Under this program, foreign investors can obtain lawful permanent residency (green card) in the United States by making a qualifying investment in a new commercial enterprise that creates jobs for U.S. workers.
To be eligible for the EB-5 program, an investor must meet certain requirements:
Investment amount: The investor must make a minimum investment of either $1050,000 million in a commercial enterprise or $800,000 if the investment is made in a targeted employment area (TEA), which is an area with high unemployment or rural areas.
Job creation: The investment must create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years of the investor’s admission to the United States as a conditional permanent resident.
Legal source of funds: The investor must demonstrate that the invested funds were obtained through lawful means, such as business profits, salary, sale of property, inheritance, or gift, among others.
Active involvement or passive investment: The investor can choose to actively manage the enterprise or can have a purely passive investment by investing in a Regional Center. Regional Centers are designated entities that promote economic growth in specific regions and typically pool investments from multiple EB-5 investors.
Once the investor meets the program’s requirements, they can file an I-526 petition with U.S. Citizenship and Immigration Services (USCIS). If approved, the investor and their immediate family members (spouse and unmarried children under 21) are granted conditional permanent residency for a period of two years. After this period, they can apply to remove the conditions and obtain permanent residency status.
It’s important to note that the EB-5 program has specific rules and regulations, and the process can be complex. Consulting with an experienced immigration attorney or a professional advisor familiar with the EB-5 program is advisable to navigate the application process successfully.
Nonimmigrant (Temporary) Employment-Based Visas
While there are many types of temporary employment-based visas, the most common categories are listed below.
H- 1B Specialty Worker Visa
The H-1B visa is made available to workers entering the United States to perform services in specialty occupations requiring a bachelor’s degree or higher or its equivalent in work experience. This visa is utilized, inter alia, by IT professionals, accountants, attorneys, architects, chemists, scientists, and medical doctors. The specialty worker may bring their spouse and unmarried children under the age of 21.
The H-1B visa has the following requirements:
(1) The specialty worker must have a job offer from a US-employer.
(2) The job itself must require a bachelor’s degree or higher in this occupation or its equivalent in specialized work experience. Specialty workers who don’t have a bachelor’s degree must typically have 12 years of specialized work experience.
(3) The specialty worker must have been offered at least the prevailing wage that is paid in the same geographic area or no less than the wage paid to similar workers at the US-employer, whichever is greater.
(4) The petitioning US-employer must have obtained a Labor Condition Application (LCA) from the Department of Labor (DOL) that the employment will comply with certain labor requirements.
The specialty worker will be allowed a maximum initial stay of three years. This time period may be extended but in general my not go beyond a total of six years. There is no limit on the H-1B visas that can be issued annually for specialty workers who will work for institutions of higher education, nonprofit research organizations, or government research organizations. All other applicants, however, are subject to a numerical cap of 85,000 visas. Within that number, 20,000 visas are reserved for people holding a Master’s degree or higher from an accredited US-academic institution. Of the remaining 65,000 visas available, however, a total of 6,800 is reserved for nationals from Chile and Singapore.
L-1 Intracompany Transferee Visa
The L-1 visa is a nonimmigrant visa category in the United States that allows multinational companies to transfer certain employees from their foreign offices to their U.S.-based offices. The L-1 visa has two subcategories: L-1A for executives and managers, and L-1B for specialized knowledge workers. Here are the general requirements for obtaining an L-1 visa:
– Qualifying Relationship: There must be a qualifying relationship between the foreign company and the U.S. company. This typically means that the U.S. company must be a parent, subsidiary, affiliate, or branch office of the foreign company.
– Employee Eligibility: The employee being transferred must have been employed by the foreign company for at least one continuous year within the three years preceding the L-1 visa application.
– Executive, Managerial, or Specialized Knowledge Role: For an L-1A visa, the employee must be coming to the U.S. to work in an executive or managerial capacity. This means they will primarily manage the organization, a department, function, or component of the company. For an L-1B visa, the employee must possess specialized knowledge essential to the company’s operations.
– Job Offer: The U.S. company must offer a job to the employee being transferred. The job must be in an executive, managerial, or specialized knowledge role.
– Dual Intent: The L-1 visa requires the employee to maintain a foreign residence and demonstrate the intention to return to their home country after completing their assignment in the U.S. However, the L-1 visa does not strictly require the employee to prove nonimmigrant intent, which means they can pursue permanent residency while on an L-1 visa.
E-1 Treaty Trader Visa and E-2 Treaty Investor Visa
The United States has entered into trade treaties with several countries and established the temporary E-Visa for treaty traders (E-1) and treaty investors (E-2). Nationals of member countries are authorized to work for a qualifying US-employer as a supervisor, manager, or key employee and bring their spouses and children under the age of 21. There is no annual limit on the number of E-Visas that can be issued. They are generally granted for an initial stay of two years and may be followed by an extension of another two years. There is no limit to the number of extensions.
E-1 Treaty Trader Visa
Currently, there are 53 designated E-1 visa treaty countries. The E-1 visa allows nationals from treaty countries to work for a qualifying US-business engaging in substantial international trade. The visa requirements are as follows:
(1) The treaty trader must be a citizen of a treaty country.
(2) At least 50% of the US-business must be owned by citizens of the treaty trader’s home country.
(3) The treaty trader must work for the US-business as supervisor, manager, or key employee.
(4) At least 50% of the trade volume carried out must be between the United States and the designated treaty country.
(5) The trade must be substantial. Regarding this, there is no strict definition. A specific sum is not written into the law. However, as a rule of thumb, the annual monetary value of the trading volume should be at least $100,000.
(6) The treaty trader must intend to leave the country once the business in the US is completed.
E-2 Treaty Investor Visa
An E-2 visa allows investors from treaty countries to work in the United States for an active, for-profit business in which people from their country have invested. Currently, there are approximately 80 designated E-2 visa treaty countries. The visa requirements are as follows:
(1) The treaty investor must be a citizen of a treaty country.
(2) At least 50% of the US-business must be owned by citizens of the treaty investor’s home country.
(3) The treaty investor must work for the US-business as supervisor, manager, or key employee.
(4) The treaty investor must have made a substantial investment in the US-business. Regarding this, there is no strict definition. A specific sum is not written into the law. However, experience shows that the invested sum should by no means be less than $100,000.
(5) The treaty trader must intend to leave the country once the business in the US is completed.
FAQ Employment-Based U.S. Immigration Law
Green Card is the colloquial term for the US-permanent residence card (which in fact is green in color). A Green Card holder is entitled to work in the United States (both as an employee or self-employed) and to even sponsor, in turn, his or her immediate non-US citizen relatives for separate Green Cards.
Green Cards are permanent, nonimmigrant visas are temporary. A Green Card holder can apply for US citizenship after he or she has held the Green Card for a certain length of time (generally 5 years, but only 3 years in the case of a bona fide marriage to a US-citizen). However, a nonimmigrant visa will never directly open the path to US citizenship.
No, once you hold a Green Card, you are expected to live in the United States permanently. That doesn’t mean that your freedom to travel in and out of the United States is restricted. However, your fixed domicile must be in the USA. If you spend too much time outside of the United States, this might be considered an abandonment of your permanent US residency, and your Green Card may be revoked. It is usually not wise to spend more than six months at a time outside the United States.
Yes, a Green Card holder is considered a US tax resident. Therefore, he or she is required to file an annual US federal tax return and declare the entire worldwide (!) income to the US government. However, he or she may claim a foreign tax credit for income tax paid in a foreign country.
Yes. 140,000 Green Cards annually are available to workers with certain job skills. There are 5 sub-categories within the employment based green card category:
- The employment first preference (EB-1) includes persons of extraordinary ability in the arts, sciences, business, education, or athletics; outstanding professors and researchers; and managers or executives of multinational companies (priority workers).
- The employment second preference (EB-2) includes professionals with advanced degrees or exceptional abilities in the sciences, arts, or business.
- The employment third preference (EB-3) includes professionals and skilled or unskilled workers.
- The employment fourth preference (EB-4) includes particularly religious workers and ministers and former US-government workers (special immigrants).
- The employment fifth preference (EB-5) includes investors investing $1.9 million in a US-business or $900,000 if the business is in an economically underdeveloped area.
Yes. However, there are two (rare) exceptions to this requirement:
Persons of extraordinary ability in the arts, sciences, business, education, or athletics in the employment first preference category (EB-1) don’t need a job offer.
Workers in the second preference category (EB-2: Professionals with advanced degrees or exceptional abilities in the sciences, arts, or business) don’t need a job offer (only) if their employment is in the national interest.
Workers who want to obtain a green card through employment need a job offer from a US-employer (subject to limited exceptions, see above). However, before such an offer can be made to a foreigner in the first place, the law requires the US-employer to complete a procedure called labor certification. Labor certification involves proving to the US-Department of Labor that the employer was unable to fill the position with an equally qualified US-worker in the region where the job is offered. Therefore, the US-employer is required to advertise the job, evaluate the job applications, and to conduct interviews. There are, however, exceptions from the labor certification requirement for certain jobs for which there is a shortage of US-workers. The US-Department of Labor regularly publishes a list of these jobs, called Schedule A. Schedule A jobs include certain medical occupations such as physical therapists and professional nurses.
No, a visa is often incorrectly equated with a residence permit. However, a visa is merely a travel document authorizing its holder to ask for entry into the United States at the respective point of entry. Thus, the validity period of a visa does not tell you how long you can stay in the US. Instead, the length of stay recorded in the (electronic) I-94 document is generally decisive.
If you are coming to the USA as a visitor for business purposes, such as negotiating a contract, attending seminars, buying goods, participating in short-term training, or performing other work-related activities for an employer located outside the USA, you qualify for a B-1 visa. However, you must demonstrate that you have a residence outside the United States that you have no intention of abandoning, as well as other binding ties that will ensure your return abroad at the end of the visit. Additionally, you may not be paid by a source inside the United States. A B-1 Visa is initially issued for a maximum of six months and can be extended up to another 6 months. Therefore, the maximum period of time you are permitted in B-1 status is generally one year.
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Scarcia-Scheel Law Firm P.C. is a specialist international law firm based in New York City. The firm provides top-notch legal services in the most important areas of business law including commercial litigation, contract law, cross-border dispute resolution and litigation, employment-based U.S. immigration law, German practice, and international business law, while maintaining a competitive and transparent price structure.
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