Employment Based U.S. Immigration: Overview

Interested in taking a quick overview of Employment Based U.S. Immigration (H1B, L1, O1, EB1, EB2, EB3)?

• Relevant Non-Immigrant Visa Options

• Non-Immigrant Visa allows the employee to work in the United States temporarily.

• Several options are available depending on business’ requirements, employee’s immigration history & professional background. Most common are:

• H1-B Visa

• L1 Visa

• O1 Visa

• H1B Visa:

• Available to employers who want to hire foreign nationals in specialty occupations – occupations requiring a minimum of 4 year bachelor’s degree or equivalent.

• Brief overview of the process:

• Electronic Registration

• Lottery selection for filing petition

• File Labor Conditional Application (LCA) with Department (DOL)

• File form I-129 with US Citizenship & Immigration Services (USCIS)

• USCIS Quota for fresh H1B visas

• 20,000 H1B visas for persons with an advanced degree (Masters +) from a public school in the United States

• 65,000 H1B for others

• Register with USCIS electronic database in March; USCIS conducts lottery for the electronically registered applicants; If selected file complete petition within 90 days of lottery declaration

• If H1B petition is approved before October 1, then applicant can start working on October 1 in H1B status otherwise start after approval.

• Application Costs:

• Filing Fee to USCIS

• I-129 fee: $460

• Fraud prevention fee: $500

• ACWIA fee:$750 if 25 or less full- time employees in the organization; $1500 if more than 25 full- time employees in the organization

• PL 114-113 fees, if applicable: $4000

• Premium processing: $1440 (decision received in 2 weeks)

• Basic Application requirements:

• Job offer letter with detailed job description, requirements

• Contract between employer and prospective employee

• Credentials of the prospective employee (resume, degree, transcripts, salary history)

• Information about the employer

• L1 Visa

• L1 visa is available to employers who want to recruit managers, executives and specialized skill workers from their parent, subsidiary, or affiliate companies outside the United States.

• L1 Visa Application Steps:

• File form I-129 with US Citizenship & Immigration Services (USCIS)

• USCIS decision

• Change status to L1 if already in the U.S. on another visa eligible for change of status or appear for consular processing of L1

• Costs:

• I-129 fee: $460

• Fraud prevention fee: $500

• ACWIA fee:$750 if 25 or less full- time employees in the organization; $1500 if > 25 full- time employees in the organization

• PL 113 – 114 fee, if applicable: $4500

• Premium processing: $1440

• Application requirements:

• Demonstrate that the overseas company has been in operation

• Demonstrate the US company has been in operation or is a new office

• Demonstrate the affiliate, parent-subsidiary relationship

• The prospective employee has been employed with the overseas company for at least 1 continuous year in the past 3 years

• Show Managerial or Specialized Skills role (L1A/B)

• O1 Visa

• The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the:

• sciences, arts, education, business;

• athletics; or

• demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements

• Evidence for O1 Visa petition must show that the beneficiary has received a major, internationally recognized award, such as a Nobel Prize, OR evidence of at least (3) three of the following:

• Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor

• Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field

• Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought

• Original scientific, scholarly, or business-related contributions of major significance in the field

• Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought

• A high salary or other remuneration for services as evidenced by contracts or other reliable evidence

• Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought

• Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation

• Application processing steps:

• O1 visa petition preparation

• USCIS decision

• Application costs:

• USCIS fee (non-premium processing or regular process): $460

• USCIS Premium processing fee: $1440

• Relevant Immigrant Visa Options

• Immigrant Visa also referred to as the Green Card. The Green card allows permanent stay in US

• Categories of Immigrant Visa:

• Family

• Humanitarian

• Business

• Within the business category following options are available:

• EB1;

• EB2;

• EB3; and

• EB4/EB5 – Not discussed here

• EB1

• EB1 is generally suggested for L1A and O1 visa holders but others qualify as well

• All countries have a quota for green cards; in EB1 category the quota used to be generally available but anymore. Still faster route to green card for some countries.

• Application processing

• Prepare application (significant step)

• File I-140

• File I-485: Quota dependent

• Application costs:

• USCIS fee for I-140: $700

• USCIS fee for I-485: $1225 (per person e.g. spouse, children);

• USCIS fee for premium processing: $1440

• EB2/3

• EB2 is suggested for individuals with advanced degrees in their field of endeavor

• EB3 is suggested for other skilled and unskilled workers

• For EB 2/3 categories the quota is generally currently available (for most countries)

• Application processing

• Prevailing wage determination (PWD) with DOL

• Recruitment effort

• Labor Certification

• The above 3 steps can be avoided if the beneficiary qualifies for a National Interest Waiver (NIW) in the EB2 category.

• I-140

• I-485 : Filing is quota dependent

• Application costs:

• USCIS fee for I-140: $700

• USCIS fee for I-485: $1225 (per person e.g. spouse, children);

• USCIS fee for premium processing: $1440

• Quotas in Immigrant Visa

• Immigrant Visa (Green Card) is available on a quota. Quota availability is determined by country of birth of the employee (referred to as “country of chargeability”).

• EB2 category is available immediately for all countries of chargeability except India and China.

• EB3 is also available immediately for all countries of chargeability except India, China and Philippines.

• EB1 is globally retrogressed (currently around ~ 3 years of lag).