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Working in the U.S.
DuPage County Attorneys for Immigrants Who Wish to Work in the United States
When coming to the United States for employment-related matters, it is important to have an attorney who is experienced and confident handling immigration law. At Unzueta Law Group, P.C., we have thorough experience and knowledge of immigration laws. We help foreign employees complete immigrant and nonimmigrant employment visa applications and proceed through the immigration process. Contact our Bensenville, Illinois law firm to discuss how an employment immigration lawyer can help you.
Employment for Intending Immigrants
If you would like to live and work permanently in the United States, you must apply for legal permanent residency through an employer. Most but not all employees coming to the United States permanently must be sponsored by an employer in the United States. Immigrant employment visas are numerically limited and issued according to the requirements of the position being filled. Because only a specific number of permanent employment based visas (EB) are issued each year, a potential employee should have good legal counsel so that time and money are not wasted in applying the wrong way for a visa.
The following are the categories of immigrant work visas. An important note for these categories is that the job must require the particular degree and the person must be qualified with that degree.
- First preference (EB-1): First preference is reserved for people with extraordinary abilities, such as an individual who has been awarded the Nobel Prize or other international award. These people do not require sponsors and can self-sponsor. Also included in this category are outstanding professors and researchers and multinational executives. These two categories do require sponsors.
- Second preference (EB-2): Second preference employment visas are available for employees with exceptional ability or advanced degrees, such as a Masters degree or a doctorate.
- Third preference (EB-3): Third preference employment visas are available for skilled workers, professionals, and other workers.
- Fourth preference (EB-4): Fourth preference employment visas are available for foreign nation religious workers and employees and former employees of the U.S. government abroad.
- Fifth preference (EB-5): Fifth preference employment visas are available for people who plan to come to the United States and create job opportunity for several other workers in the United States, such as an individual starting a company in the United States, which will create several other job opportunities. This is frequently called the investor visa.
Check the current visa bulletin to determine the availability visa numbers
The Employment Visa Application Process
Immigration laws state that a foreign national cannot displace a worker that is a U.S. citizen. Therefore, in most circumstances, the employer must first seek labor certification from the U.S. Department of Labor before hiring foreign workers.
The Labor Certification process includes advertising for the position, interviewing other candidates, and determining that there are no U.S. workers available for the position.
Once the Labor Certification process is complete, the next step is to file a petition for alien worker asking that a visa number be made available. The availability of visa numbers is shown on the monthly visa bulletin issued by the Department of State. Availability depends on EB category and where the foreign national is from.
Once the visa number is available, consular processing or adjustment of status can be completed to obtain a green card for the foreign national.
Our experienced immigration attorneys are able to help employers and employees obey the employment visa application laws and processes.
We provide prompt, professional, and quality representation to clients seeking a permanent employment visa to come to the United States. Contact us for experienced assistance.
Employment for Intending Nonimmigrants
Another option for working in the United States, is obtaining a nonimmigrant work visa. There are several available, and they are often a good alternative to immigrant processing, as those numbers are becoming increasingly backed up.
Below is a list of the most commonly used work visas:
E-1 – Treaty Trader
Overview |
Foreign nationals may obtain an E-1 visa to remain in the United States for two-year periods. There is no limit on the foreign national's stay so long as he continues to qualify for the visa. The E visa is not an immigrant visa or a dual intent visa, although the Service will usually not remove someone on a E visa who is also pursuing permanent residency (green card). |
Requirements |
Requires that there be a treaty in place between the U.S. and the foreign national's country of origin, that the non-U.S. business is owned by a foreign national of the same nationality as the treaty, and that the foreign national himself be of the same citizenship. The treaty trader must show that the U.S. company trades goods or services with the country of origin. At least 50% of the U.S. company's trade must be with the country of origin. The foreign national must work at the company as an executive or manager. He must be in charge of a major function of the company. An alternative is to have the foreign national be a specialized knowledge worker, but this is much more difficult to prove and does not often work with new enterprises. |
Family Members |
Family members (spouse, unmarried children under 21) may accompany the primary foreign national. Spouses may obtain work authorization. |
Filing |
Foreign nationals usually apply at the consulate in their home country. Each consulate has its own requirements for the specific look of the E packet. An application within a third country is allowed; however, many consulates (most notably Mexico and Canada) will only entertain applications for citizens of their own countries. Each consulate publishes its own rules. Foreign nationals who are in the U.S., not on the visa waiver program, in status, and without previous overstays may apply to change status (usually from B-1 to E). This requires approval form USCIS (unlike consular processing) and will therefore take longer. |
E-1 Treaty Countries |
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Click here for the Department of State list with effective dates.
E-2 – Treaty Investor
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Overview |
Foreign nationals may obtain an E-2 visa to remain in the United States for two-year periods. There is no limit to the foreign national's stay so long as he continues to qualify for the visa. The E visa is not an immigrant visa or a dual intent visa, although the Service will usually not remove someone on a E visa who is also pursuing permanent residency (green card). |
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Requirements |
Requires that there be a treaty in place between the U.S. and the foreign national's country of origin, that the non-U.S. business is owned by a foreign national of the same nationality as the treaty, and that the foreign national himself be of the same citizenship. The treaty investor must show active and substantial investment in the U.S. company that creates some U.S. jobs and that the investor plays some essential role in the enterprise (see below). Active and substantial investment means that the funds invested are at risk and are either proportional to the enterprise in general or usual for the type of business to be started. For example, a restaurant that requires a lot of equipment and inventory would require a larger investment than a consulting company where services are provided. The foreign national must work at the company as an executive or manager. He or she must be in charge of a major function of the company. An alternative is to have the foreign national be a specialized knowledge worker, but this is much more difficult to prove and does not often work with new enterprises. |
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Filing |
Foreign nationals usually apply at the consulate in their home country. Each consulate has its own requirements for the specific look of the E packet. Applications within third countries are allowed; however, many consulates (most notably Mexico and Canada) will only entertain applications for citizens of their own countries. Each consulate publishes its own rules. Foreign nationals who are in the U.S. not on the visa waiver program, in status, and without previous overstays may apply to change status (usually from B-1 to E). This requires approval form USCIS (unlike consular processing) and will therefore take longer. |
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Family Members |
Family members (spouse, unmarried children under 21) may accompany the primary foreign national. Spouses may obtain work authorization. |
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E-2 Treaty Countries |
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Click here for the Department of State list with effective dates.
L-1 – Foreign Subsidiary
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Overview |
Foreign nationals may transfer from their overseas position to a job in the United States with a subsidiary or sister-company of the foreign company. This visa is issued in three year increments with a six year maximum. For new startups, the L visa is usually only issued for an initial one year period and then extended. The L visa is a dual intent visa, and there are no issues with the foreign national pursuing legal permanent residence while on an L visa. |
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Family Members |
Family members (spouse, unmarried children under 21) may accompany the primary foreign national. Spouses may obtain work authorization. |
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Requirements |
The foreign national must have worked at the foreign company for at least one of the previous three years, the U.S. company must be a subsidiary of the U.S. company, the foreign national must have been an executive or manager abroad and perform those duties in the U.S. (exception for specialized knowledge but that is harder to prove and not as advantageous in a labor certification context), and the employee must independently qualify as a manager or executive. |
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Filing |
Foreign nationals usually apply with USCIS and then take the approval notice to their consulate to have the visa issued. Applications within third countries are allowed; however, many consulates (most notably Mexico and Canada) will only entertain applications for citizens of their own countries. Each consulate publishes its own rules. Foreign nationals who are in the U.S. not on the visa waiver program, in status, and without previous overstays may apply to change status (usually from B-1 to L). |
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Advantages |
The L visa is a dual intent visa. A foreign national wishing to gain permanent residency and who qualifies as a manager and executive can petition for legal permanent residency without the usual labor certification (that would be required under the E visa). Also, L managers and executives are classified in the first employment category, thus having a better chance at a visa number. |
H-1B – Professionals
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Overview |
The H-1B visa is a nonimmigrant visa for foreign workers planning to work in a specialty occupation in the United States. Generally, a specialty occupation requires a Bachelor's degree or its equivalent. H-1B visas are issued for a period of three years and renewable for another three year period. If the H-1B visa holder meets certain requirements regarding permanent sponsorship by an employer, the H-1B can be renewed past the six year mark. |
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Family Members |
Family members (spouse, unmarried children under 21) may accompany the primary foreign national. Spouses may not obtain work authorization. |
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Requirements |
Foreign nationals must have a Bachelor's degree or its foreign equivalent and must be otherwise qualified for the position. The employer must offer and pay the prevailing wage for the specialty occupation. |
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Filing |
The employer files with USCIS on April 1 for a start date of October 1. In years past, all the H-1B visas have been taken on the first and second day of filing, thus triggering a lottery for the visas. This year, the H-1B visa remains available. |
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Advantages |
The H-1B visa is a dual intent visa, so many H-1B visa holders pursue permanent residency while on the visa. |
B – Professionals
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Overview |
Professionals coming to the United States for a short stay, who plan on limited work, and who are being compensated by a non-U.S. entity can enter on a B visa. Persons may come to the U.S. for sales meetings, conventions, and training. |
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Requirements |
Applicants must show the temporary reason for their business trip to the U.S. and that they are otherwise admissible to the U.S. |
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Filing |
A foreign national may apply at the consulate in their home country. Third country processing is also available. |
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Advantages |
A foreign national who plans a brief, work-related trip to the U.S. will find this an easy and convenient visa. |
TN – Professionals
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Overview |
Canadians and Mexicans can apply for this professional-level visa to work as nonimmigrants in the United States. These visas are issued for periods of one year and are renewable. Only specific professions qualify for this visa, and this visa is not for those intending to immigrate to the U.S. |
Family Members |
Family members (spouse, unmarried children under 21) may accompany the primary foreign national. Spouses may not obtain work authorization. |
Requirements |
Only the following positions are TN eligible:
MEDICAL ALLIED HEALTH PROFESSIONALS
SCIENTIST
TEACHER
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Filing |
Canadians may apply at a port of entry. Mexicans must apply at a consulate in Mexico. |
Advantages |
For those intending to work in the U.S. on a nonimmigrant basis, this is a convenient visa to obtain. |
As experienced immigration attorneys, our team is able to help employers and employees obey the employment visa application laws and processes.
We provide prompt, professional, and quality representation to clients seeking a temporary employment visa to come to the United States. Contact us at 630-509-2363 for experienced assistance.
Contact Unzueta Law Group, P.C.
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