Ultimate Guide to Employment Visas

An employment visa is a visa provided by the United States government that allows a foreign national to travel into and live in the United States temporarily in order to work and reside. There are numerous different types of employment visas. The type of visa an individual will need to apply for depends on the type of work in which they will be engaging.

In many cases, the applicant’s employer will sponsor or petition the applicant to be permitted to work in the United States. It is the responsibility of the individual coming to the United States as an employee to maintain employment with the sponsor company in order to keep their visa current and valid. If the employer closes or goes out of business, the individual will most likely lose their employment visa status.

If the individual has a family and the family wishes to join them while they work, employment visas permit families to accompany the employee during their stay in the United States. Some, however, place restrictions on the family members, such as the children must be under age 21 and unmarried and they cannot work while in the U.S.

Employment based visas may be obtained based on categories including:

• Extraordinary Ability of Aliens;
• Outstanding Researchers and Professionals;
• Professional Talent;
• Multinational Executives and Managers; and
• Investors and Employment Creation.

How Do You Qualify for an Employment Visa?

There are numerous types of employment visas, which will be discussed in detail below. The main requirement for employment visas is that the applicant meets the employment description listed for the category they are applying for. In general, employment visas include the following requirements:

• Proof of their employment in the United States;
• Documents and certification from the sponsoring employer;
• Submission of various immigration documents including:
  • birth certificates;
  • photo identification;
  • medical records;
  • X-rays; and
  • valid passports;
• Security clearance and a criminal background check; and
• In certain cases, interviews.

If an individual is denied an employment visa, they may appeal the denial. The appeals process will likely require the help of an immigration lawyer to ensure it is completed in a correct and timely manner.

What are the Types of Employment Visas?

As previously mentioned, there are numerous types of employment visas. Each has different requirements for qualifications. Employment visas include the following:

• EB1 visas are for Priority Workers. The applicants have extraordinary ability in arts and sciences, or are processors, researchers, or managers. The documentation required to prove extraordinary ability may be voluminous;
• EB2 visas are for Professionals with Advanced Academic degrees and Persons of Exceptional Ability;
• EB3 visas are for skilled workers, professionals, and other workers. To qualify for an EB3 visa, the job must require two years or more of work experience in the field;
• EB4 visas are for certain special immigrants including religious ministers, broadcasters, and other occupations listed in the category. The employment requirements that are listed in this category are very specific and may require the assistance of a lawyer to understand; and
• EB5 visas are for immigrant investors. These are individuals who are investing a significant amount of money that is devoted to resources which will create jobs in the United States.

What is Sponsorship for Employment Visa Status?

If a foreign national acquires sponsorship for an employment visa, it means they enter the United States as an eligible worker on a company-sponsored visa. This type of visa is a H-1B visa.

H-1B visas are limited in number. Only 85,000 are given per year. Many are limited to individuals who hold advanced degrees from a college or university located in the United States.

Occupations that fulfill the requirement of the specialty occupation include occupations that require theoretical and practical application of a body of specialized knowledge as well as that the applicant holds at least a bachelor’s degree or the equivalent thereof.

The H-1B visa permits an individual from another country to legally work in the United States based on criteria that are established by the United States Citizenship and Immigration Services (USCIS). Sponsored individuals in this category are typically required to hold a bachelor’s degree or higher.

An employment visa sponsorship is approved based upon an individual working for a specific company and performing specific job duties at a specific location. If any changes to the position occur, the employer must file an additional petition with USCIS. The employee sponsor status is approved in three-year intervals. It can be approved for up to six years.

What is United States Employers Compliance?

All employees who are employed in the United States or its territories for a covered employer are protected by Equal Employment Opportunity (EEO) laws, regardless of their citizenship or work authorization status. United States territories include:

• American Samoa;
• Guam;
• Northern Mariana Islands;
• Puerto Rico; and
• The U.S. Virgin Islands.

United States Equal Employment Opportunity laws include:

• Title VII of the Civil Rights Act of 1964;
• The Age Discrimination in Employment Act (ADEA);
• The Americans with Disabilities Act (ADA), and
• The Equal Pay Act (EPA).

These laws prohibit an employer from discriminating against employees on the basis of:

• Race;
• Color;
• Sex;
• National origin;
• Religion;
• Age; or
• Disability.

Conduct that is prohibited by these laws includes:

• Discriminatory employment decisions;
• Discrimination in compensation and benefits;
• Harassment; and
• Retaliation.

What are Employment-Based Permanent Residence Petitions?

An employer can sponsor a foreign national for permanent residence based on a permanent offer for employment. This process typically begins when the employer obtains an approved Application for Permanent Labor Certification from the U.S. Department of Labor.

Once this application is approved, the employer files an Immigration Petition for Alien Worker form on behalf of the foreign national employee. A United States employer may sponsor a prospective or current employee who is inside of or outside of the United States and who qualifies for one or more of the employment based immigrant visa categories. As noted above, there are multiple EB visa categories available to eligible foreign nationals.

By petitioning on behalf of the foreign national, the employer demonstrates that they have the intent to hire the employee upon approval of the petition. By proving that the employer-employee relationship does, in fact, exist and that the employee has the required qualifications for the position, they are given a position in the line of immigrants waiting to enter the United States legally.

This position in line is commonly known as a priority date. It is based on the date that the employer files the labor certification with the Department of Labor.

Should I Hire an Immigration Lawyer?

It is essential to hire an experienced immigration lawyer for any employment visa status issues. As noted above, there are many different types of visas available. An attorney can help you determine the categories for which you are eligible to apply.

The requirements and deadlines for employment visa applications may be complex. Failure to meet time deadlines may result in a denial of your application. A lawyer can assist you throughout the process, ensure your application is timely and complete, and assist you with an appeal if your application is denied. Having an attorney assisting you with your application will ensure it is submitted correctly the first time and increase your chances of working in the United States sooner.