Foreigners must have a valid U.S. employment authorization document to engage in employment or engage in labor/service in return for compensation in the U.S. under U.S. immigration law.
EB 1A Extraordinary Permanent Residency
This immigrant petition (Green card petition) is available for individuals with extraordinary ability in the Sciences, arts, education, business and athletics. A self-petition is allowed and it is filed without a labor certification (PERM) or job offer but must demonstrate that an individual with extraordinary ability has risen to the very top of their field of endeavor by sustained national or international acclaim and its achievements have been recognized in the field through extensive documentation.
EB 1C Multinational Executives/Managers Permanent Residency
This green card petition can be filed on behalf of a multinational executive or manager provided that there is qualifying corporate relationship between the foreign company and the U.S. company; executive or managerial employment abroad for one continuous year on a full time basis; permanent full time job offer by the U.S. company and the U.S. company has ability to pay the proffered wage. This petition also does not require labor certification (PERM) nor recruitment processing.
National Interest Waiver Permanent Residency
A National Interest Waiver is second preference category of the green card processing (EB2) and it does not require an employer to sponsor a permanent job offer for the national interest of the U.S. It can be filed as a ‘self-petition’. A foreign national must have exceptional ability in the sciences, arts or business and demonstrate substantial intrinsic merit to the U.S.
Schedule A Health related practitioners
This green card processing is exempted from the PERM labor certification process for the occupations as not having enough able, willing, qualified and available U.S. workers. Professional nurses (RN) and physical therapists are two occupations specifically listed on Schedule A. Because no recruitment processing is required other than Notice of Posting, a foreigner will be able to obtain green card quickly.
E1/E2 Treaty Traders/Investor Visa
Based on treaty of friendship, commerce and navigation, BIT or other arrangements between the U.S. and country of applicant’s nationality, E1 trader or E2 investor visa is available. Initial petition will allow two years of stay up to five years of stay in the U.S. The spouse of E1/E2 visa holder can apply for work authorization card.
H1B/H3 Professional Employment Visa
A person in a “Specialty Occupation” who possess at least a bachelor’s degree or higher (its equivalent) can obtain H1B visa or the U.S. employers can employ foreign professionals for a specified period of time temporarily. This visa type allows the foreign workers in specialty occupations to legally live and work for a total of six years generally. In every year H1Bs are capped at 65,000 for a bachelor’s degree holders and 20,000 for a master degree’s holders.
O Artists/Scientists Visa
A foreigner who has extraordinary ability in the Science, arts, business or athletics which has been demonstrated by sustained national or international acclaim can obtain O visa for an initial stay of three years and can be extended unlimited times.
L Intracompany Transferee Visa
A foreign national who seeks to enter the U.S. temporarily to continue to work for the same employer, affiliate, subsidiary, or parent company not limited to profit corporations but also non-profit, religious or charitable organizations can obtain either L 1A Executive/Managerial or L1B specialized Knowledge Capacity working visa. There must be a qualifying organizational relationship between the U.S. company and a foreign company, and the transferring employee must have worked for the foreign company more than a year.
J Intern/Trainee Visa
This is exchange visitor program for foreigners to travel to the U.S. through a Department of State approved sponsor program to study, receive training/internship or demonstrate special skills in the U.S. The sponsor must be accredited through the Exchange Visitor program for hosting companies. Trainee program is generally limited to 18 months and the internship is limited to 12 months. Consulates will issue the visa at any time as long as the DS 2019, which is issued by the qualifying exchange visitor program sponsors, is valid.
TN NAFTA for Mexican/Canadian Professionals
TN status is for Canadian and Mexican citizens who are engaged in professional activities, and will be admitted for up to three years. TN status is similar to H1B status but there is no limitation on stay. NAFTA defines activities at a professional level as requiring at least baccalaureate degree or appropriate credentials demonstrating as a professional.
Appeals
Most of appeal cases are directed to AAO (Administrative Appeals Office). All denials of nonimmigrant visas or immigrant visas are eligible to file for an appeal or motion to reconsider or reopen within 30 days of the decision.
I-9 E-Verify Requirement
U.S. Employer must review an employee’s documents to verify employment eligibility and attest under penalty of perjury on Form I-9. The Employer is required to retain the form for three years after the date of hire or one year after employment gets terminated. If the employer knowingly continues to hire an unauthorizaed worker, the employer can be subject to sanctions and penalties under the law.
LCA Audit & Filings
LCA (Labor Condition Application) must be filed electronically on ETA 9035E containing the number of # of workers, sought, the occupational classification, the prevailing wage and method used to determine, the wage rate and the working condition; and it is valid for the period of employment up to maximum of three years. The Employer must maintain ‘public access file’ including certified LCA accessible to any one at employer’s place of business or worksite. Failure to comply with all LCA requirements may result in a fine and debarment from approvals of any H1B, E3 visas or IVs for at least one year.
Labor Certification Audit
Labor Certification processing (LC) is to test the labor market is applicable to EB2 and EB3 categories of immigrant petition (Permanent residency). An audit may be issued for LC if there is need to review an individual LC application or due to a random request for quality control by the Department of Labor. Once audit is issued, it must be responded within 30 days and the employer has the burden of proof that the company has complied with the regulation.