Immigrant Employment-Based Visas
The employment based immigration system is based on providing benefits to U.S. employers and the foreign workers they want to hire only if that employment would not harm U.S. workers (U.S. citizens or permanent residents). Like the family based immigration system, employment based immigration is built upon a preference system. This system looks at the education of, and type of, work being offered to the foreign worker and will determine the steps in the application process as well as how long a wait there will be for an available visa. As with the family-based visa preference system, the employment based system provides visas more quickly to those in higher preference categories.
For all but the very highest preference category reserved for aliens with extraordinary ability or who are internationally renown, the employment based immigrant visa preference categories involve an important step called Labor Certification. This process requires the employer to establish that U.S. workers would not be adversely affected by the approval of a visa petition. To do this, an employer must demonstrate:
- It is offering the prevailing wage or higher to the foreign worker
- It has the resources to pay the wage offered to the foreign worker
- There are no qualified U.S. workers available and willing to fill the position
This is a challenging process and in light of the many regulations surrounding the process, you need to plan an effective strategy for fulfilling each of the requirements. Once the labor certification application process is complete, an employer submits an application online to the U.S. Department of Labor. Once that application is approved, the employer may move forward with a petition to the immigration service (U.S. Citizenship & Immigration Services-USCIS). That petition will be approved so long as there is a genuine offer of employment, the foreign worker is qualified to fill it, and the prevailing wage or higher is being offered.
Once the initial petition is approved, the foreign worker may either adjust status (if he/she is in the United States in legal status) or obtain the immigrant visa at a U.S. Consulate abroad.
The employment based immigration process can be a long and challenging one and it is critical that an employer address it proactively and strategically in order to be successful. To learn more about this process, please contact the immigration attorneys at the Hacking Law Practice by calling (314)-961-8200.