Employment-Based Visas in Charlotte

Skilled Charlotte Immigration Lawyer

Employers can file petitions for certain workers, either for an immigrant or non-immigrant visa. Immigrant employment visas allow the foreign national to become a permanent resident, after which they can work for any employer, in any capacity. Non-immigrant employment visas, however, are tied to a specific employer and are available only for certain jobs.

E1/E2 Visas

E1 and E2 non-immigrant visas are available only to nationals of certain countries with which the United States has a qualified treaty. E1 visas are for companies that will be engaging in trade with the foreign company, whereas E2 visas are for employers seeking to make a substantial investment in a U.S. business.

Of these visas, the E2 is the most common. The E2 applicant may be the owner of the company or the employee of an E2 employer owned company. E2 visas for new companies are initially granted for one year; renewals are issued for two years. Unlike other non-immigrant employment visas, there is no limit to the amount of time an individual can hold E visa status.

H-1B Visas

The H-1B is probably the most well-known non-immigrant employment visa. Generally, the job to be filled must be in a professional area and require at least a bachelor’s degree, and the applicant must meet that requirement. The employer must make several attestations, including that it will pay the H-1B employee the prevailing wage for the occupation. Foreign nationals from any country are eligible to apply for an H-1B visa, but the U.S. only issues a limited number of these visas each year. In recent years, 65,000 H-1Bs have been available per year with an additional 20,000 available to those with a master’s degree.

Generally, an H-1B is issued for three years and can be renewed for an additional three years. Under limited situations, the H-1B can be extended beyond six years. Unlike most non-immigrant visas, the H-1B is a dual intent visa, meaning that the foreign national can intend to apply for permanent residency.

H-2A/H-2B Visas

The H-2A visa allows an alien to enter the United States to perform seasonal agricultural work. The H-2B visa allows an alien to enter the United States to perform seasonal non-agricultural work.

L1A/L1B Visas

L1 visas are for transferees from international companies. An international company can seek an L1 for the purpose of transferring an employee to an existing U.S. operation, or to open a U.S. branch of the company. There is no certain dollar investment required, but both the U.S. and foreign country must continue to be operational. L1A visas are for executives and managers. L1B visas are for workers with specialized knowledge. An individual can remain in L1A status for a maximum of 7 years, whereas an L1B holder is limited to five years.

Unlike the H-1B, there is no annual cap on the number of L1 visas issued. Like the H-1B, however, the L1 visa-holder is allowed to have dual intent and is not required to show that he intends to return to his country of origin.

Employment-Based Immigrant Visas

Workers whose skills are needed in this country may be able to obtain a green card through an employer petition. For most employment categories the employer is required to go through a lengthy labor certification process whereby the employer advertises and recruits for the position and documents that there is no qualified U.S. worker willing and able to fill the position. The following categories of employment visas are available.

First Preference (EB-1) - This preference category includes 3 subcategories, none of which require labor certification.

  • Persons of extraordinary ability in science, art, education, business, or athletics as demonstrated by achieving national or international acclaim.
  • Outstanding professors and researchers with international recognition
  • Multinational executives or managers being transferred to a U.S. location

Second Preference (EB-2) - Advanced degree professionals with exceptional ability in science, art or business. Labor certification or national interest waiver required.

Third Preference (EB-3) - This preference category includes professionals with a baccalaureate degree, skilled workers with at least two years' training or work experience, and "other workers" for positions that require less than two years' training. Labor certification is required for all EB-3 workers.

Fourth Preference (EB-4) - Special immigrant visas - includes religious workers and various other special situations.

Fifth Preference (EB-5) - Employment creation/investor visas - Available to aliens who invest $1 million dollars in a new business that employs at least ten full-time American workers. A smaller investment of $500,000 may be allowed if the business is located in an approved rural area. This visa is conditional for two years, but becomes permanent upon removal of the conditions.

PERM/Labor Certification

Prior to filing most employment-based immigrant visa petitions, the employer must demonstrate that hiring the foreign worker will not adversely affect U.S. workers. This involves multiple steps.

First, the employer must obtain a prevailing wage determination from the National Prevailing Wage Center. The prevailing wage is the average pay workers in a specific job are paid in a given geographical area. The employer must then take several specified recruitment and notification steps and document its inability to find a qualified U.S. worker.

If the employer was unable to find a qualified U.S. worker after completing all recruitment steps, the employer then files for labor certification with the Department of Labor. Only after the labor certification is approved may an employer file an immigrant visa petition with USCIS.