Employment Based Immigration – The Basics

Business Immigration

When we hear about immigration we very often hear about refugees, asylum seekers, boarder crossers, undocumented immigrants, and we occasionally hear about H-1B’s – temporary workers. What is often missed are the important employees that are the beneficiaries of employment based immigrant and non-immigrant petitions. The most well known non-immigrant petition is the H-1B , but that is not why we are here.
Employment based immigration takes many forms. There are generally two types of visas – the immigrant visa and the non-immigrant visa. The immigrant visa allows a beneficiary to remain in the U.S. permanently with a green card. The non-immigrant visa allows a beneficiary to live and work in the U.S. for a certain period of time, but then must return to their home country.
Employment based immigrant visas are available in five categories. The total number of visas available are 140,000 for all the categories.

The five categories are issued visas for the following:

  1. individuals with extraordinary ability, outstanding researchers and professors, and multinational managers and executives.
  2. individuals who hold advanced degrees or the equivalent, individuals with exceptional ability, and individuals who are issued national interest waivers.
  3. professionals, skilled workers, and other workers.
  4. includes “special immigrants,” such as individuals serving in the U.S. military, religious workers, and broadcasters.
  5. individuals who create employment by investing in or opening a new enterprise.

Each category receives a certain percentage of the the total available immigrant visas, with the first category receiving the most and the next few receiving proportionally less.
The overall policy of the employment-based immigrant visa system is to attract the best and the brightest from around the world to work and innovate in the United States.
Employment-based non-immigrant visas have a much narrower selection of options but more types of visas. Meaning non-immigrants need to find a visa that fits their particular skill set in order to obtain the visa. For example, there are specific visas for company transfers, investors, athletes, researchers, artists, farm workers, sheep herders, etc. They each have a different numerical limitation and have their own letter corresponding to their purpose. There is a veritable alphabet soup of non-immigrant visas available.
Workers seeking employment in the United States generally need a U.S. company to sponsor their bid for a visa. The employer petitions the government – through the United States Citizenship and Immigration Services (USCIS) arm of the Department of Homeland Security – to give permission for the employee to work for them. If the petitioner/employer receives approval for the petition, the employee/immigrant must then apply for a visa from the State Department. The State Department investigates the persons background, through an interview and documentation, to ensure the person does not create a criminal or security risk. Once approved, the employee can then get on a plane to the U.S. and begin their assignment.