Employment Based Immigration
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Employment Authorization Documents
Foreign nationals should be sure to get quality legal advice about their eligibility to pursue employment in the United States. Some visa types include employment authorization by default; others require the applicant to file a separate Form I-765, Application for Employment Authorization, to request a work permit. Violating the terms and conditions of a nonimmigrant visa that does not permit employment can cause serious eligibility problems in future applications for other immigration benefits, so it’s critically important that foreign nationals fully understand their rights and limitations, even before taking up a side job during a period of nonimmigrant status.
Optional Practical Training is a temporary period of authorized employment offered to certain F-1 students studying in fields that may include practical training elements. Typically, F-1 student visas prohibit employment while attending the programs but OPT offers students an opportunity to explore their chosen career in the United States for a temporary period. Some OPT students use their OPT period as an opportunity to explore possible employer sponsors for a future, long-term immigration status.
Premium processing is a service provided by USCIS on certain limited application types. To request premium processing, the petitioner must file Form I-907 and the required filing fee (along with the required fraud prevention fee, where applicable) to accompany the petition or application in question. USCIS typically faxes or emails decisions in premium processing cases to the parties on the case and/or their attorneys to expedite the process beyond regular postal mail. Read more at USCIS’s website about how to request premium processing.
The U.S. immigration system for professional employees and their dependents is notoriously complicated and time sensitive. H-1B visas offer temporary, nonimmigrant status to foreign nationals with a current job offer for a skilled position in the United States. The process of petitioning for an H-1B employee can be complicated for a number of reasons. First, there is a limit, or “cap,” on the number of H-1B visas available to most employers (with some notable exceptions, like academic institutions). Second, the application process involves applying in a lottery for the limited visas available. Most H-1B visa spots are filled up on the first day that the lottery opens, typically around April 1st of each year.
Employees who are able to secure their place in the visa lottery or secure a job offer from a cap-exempt employer may be eligible to include their dependent spouse and/or children on their status as H-4 derivatives. These H-4 derivatives may be entitled to certain benefits like employment authorization (“work permit”) or attending school in the United States.
Prospective applicants should consider a variety of employment opportunities that fit their skill set, and prospective employers and employees alike will benefit from an in-depth consultation with a skilled immigration attorney to help them navigate the timing, procedural requirements, and financial requirements of the process.
Premium processing (link to premium processing page) may be available to some applicants, which expedites the decision to 15 days. Typical USCIS processing times can vary from a couple of months to the better part of a year, so premium processing can be ideal in situations where prospective employees need to be able to receive their visa and get settled in the United States before a target start date for employment.
Some companies may opt to petition for employees working at divisions abroad to relocate to the United States. This could be to perform a high-level executive function at an existing U.S. branch, or to begin the process of opening a U.S. branch of the foreign company. These petitions offer renewable, temporary nonimmigrant status to the foreign national seeking to occupy the U.S. position of employment.
Individuals who can establish that they stand out in their field of expertise may be eligible to receive O-1 nonimmigrant status, which is based on exceptional ability and recognition of their achievements. This renewable nonimmigrant status may apply to distinguished scientists, top-notch athletes and artists, musicians, medical professionals, inventors/entrepreneurs, and even fly-fisherman.
Applicants for O-1 status should review their qualifications with an experienced immigration attorney to be sure their case meets the minimum eligibility requirements.
Exchange Visa Waivers
Certain eligibility requirements apply to both the employer and the employee. Companies and executive employees interested in pursuing an L-1A or L-1B Petition should consult with qualified immigration attorneys to ensure they establish that they meet all the requirements.
Religious workers can be admitted to the United States for renewable, temporary periods of time. This includes pastoral workers and ministers. The process requires filing a special petition called the I-360 Petition and involves a site visit at the religious organization’s headquarters or branch. Once the initial petition is approved, the petitioning organization can petition for more international employees in the future. Premium processing, a service that expedites the decision within a 15-day window, is available after the initial petition is approved. Applicants then apply for their visa at the U.S. embassy or consulate nearest to their residence abroad or located in their country of origin.
Investor Visas (EB-5 and E-2)
Some applicants may be qualified to obtain a green card (Lawful Permanent Residency) based on their employment or investment opportunities. The EB-5 category of investor visas typically requires a substantial investment of $500,000 or more in an existing investment category already approved by USCIS. The investments bear a similar risk/reward assessment to other investment projects, but as an immigrant investor, applicants can become eligible to apply for a green card.
National Interest Waivers
National Interest Waivers are cases that allow highly qualified and skilled workers to self-petition for Lawful Permanent Residency, meaning they do not have to have an employer willing to sponsor them for a permanent position. Individuals working in areas of expertise that are critical to the development, public safety, medical practice, infrastructure, energy development, or other essential sectors of U.S. society have to establish their exceptional ability and distinction to qualify. Successful cases result in a green card for the applicant.
Extension of Status
For various reasons, someone might arrive in the United States with temporary status and need to request an extension of their permission to remain here. Types of statuses that can be extended vary, but include some common visa types like tourist/visitor visas, student visas, and professional visas. Although extension of status might seem like a straightforward request, processing times with USCIS and limitations on certain categories can make the process much more complicated and stressful than expected. An experienced immigration attorney can help you navigate an extension request with confidence.
Student visas, or F-1 Visas, allow individuals to temporarily reside in the United States while studying in an approved educational program. The student visa comes with certain limitations on employment and the term of validity is typically dictated by the length of the program of study. Most important to prospective U.S. students is the financial question: can you establish that you have enough funding to cover your personal expenses during your course of study? Some applicants opt to participate in additional academic programs after their initial program is completed, and there may be extensions available to individuals with certain qualifications to allow them to work for a limited period in their field of study.