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Employment Immigration Lawyer

America needs more employment-based immigrants. Consisting mostly of professionals, skilled workers, and persons with “extraordinary” or “exceptional” ability, employment-based immigrants could make our immigration system power faster economic growth.

An employment immigration lawyer will help you through the application process for an employment-based immigrant visa. The Law Office of Lu & Associates specializes in immigration law and can help an alien worker become a permanent resident.

What Is Employment Immigration?

Although nonimmigrant work visas, such as H-1B, L-1 and O-1 allow foreign workers to live and work in the United States legally, they are  temporary with a time limit set for each different work visa.  Unlike non-immigrant visas, employment-based immigrant visas lead applicants to the lawful permanent residency in the United States. After five years of being a lawful permanent resident, certain qualified foreign nationals may apply for U.S. citizenship. Therefore, foreign workers, their unmarried children under 21 years old, and their spouses may be eligible to permanently live and work in the United States if they qualify for one of five employment based visa preference categories.

What Are the Types of Employment Based Immigrant Visas? 

There are five types of employment-based visas. Foreign nationals with different combination of educational background, working experience, and skill set may qualify for different visa categories.

EB-1 Visas 

The EB-1 visa is a first-preference employment based visa that is available to 

  • foreign nationals with extraordinary ability (EB-1A) 
  • Outstanding Professors and Researchers (EB-1B)
  • Multinational Managers or Executives (EB-1C)

Labor Certification is not needed for visa applications filed under this category. Because the EB1 visa category usually does not have visa backlogs, it is considered as the fastest option among the five types of employment based immigrant visas.

EB-2 Visas

The EB-2 visa is a second-preference visa that is available to 

  • Professionals Holding an Advanced Degree
  • Persons with Exceptional Ability

Applications filed under the EB-2  category must generally have a Labor Certification approved by the U.S. Department of Labor. Labor Certifications are not required for the immigration petitions filed by the foreign nationals seeking a national interest waiver because it will be in the best interest of the United States if the qualified foreign nationals are allowed to stay in the U.S. 

EB-3 Visas 

The EB-3 vias is a third-preference visa that is available to

  • Skilled Workers
  • Professionals
  • Unskilled Workers

For any of these groups, a permanent, full-time job offer is a requirement in order to qualify. They must also have their own labor certification approved.

EB-4 Visas

The EB-4 visa is an employment-based, fourth preference visa that is available to special immigrants. 

Different from the first three employment based visa categories, where immigration petitions are filed on the Form I-140, employment-based fourth preference immigrant petitions should be filed by your employer on the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. However, there are certain situations where the employee may make a self-petition.

EB-5 Visas

The EB-5 visa is an employment-based, fifth preference visa that is available to foreign high networth Investors.The immigration petition should be filed on the Form I-526. Approximately 10,000 visa numbers are allocated annually to EB-5 investors.

In order to qualify for the EB-5 visa, a foreign investor must make the necessary investment in a new commercial enterprise in the United States, which will create or preserve 10 permanent full-time jobs for qualified U.S. workers.

What Is Your Priority Date and How to Use it?

The priority date is used by the Department of State (“DOS”) to determine where you are in the visa queue when there are a limited number of immigrant visas available in a given year. 

For family sponsored immigration, the priority date is the filing date that the I-130 petition is filed with the U.S. Citizenship and Immigration Services (USCIS). The priority date for an employment based immigrant petition is either the date the immigration petition is filed with the USCIS when a labor certification is not needed, or the date the labor certification application was accepted for processing by the Department of Labor.

The DOS updates its visa bulletin monthly. It lists priority dates for different immigration categories for visa applicants born in different countries. If the Visa Bulletin shows "C", which means "current", under your application category and your country of birth, you will be eligible to apply for an immigrant visa by either filing the I-485 application if you are in the U.S. with a valid non-immigrant status, or going through the consular processing if you are outside of the U.S. 

If the Visa Bulletin shows a date for a visa category and country, it means only people whose priority dates are prior to that date can apply for an immigrant visa under that category. People with priority dates later than that date will have to endure a visa backlog. If there are no more visas available, the bulletin will represent this with a  U, for unavailable.

The visa bulletin has two sets of dates on it: the “Final Action Dates'' and the “Dates  for Filing”.  Final Action Dates indicate when immigrant visa numbers will be actually available. Applicants with their priority dates earlier than the Final Action Dates will get their green cards not too long. The “Dates for Filing” chart shows which green card applicants who are living outside of the United States should go ahead and submit their application with the National Visa Center (NVC)—even though a visa number is not ready yet. 

For people who are in the U.S. and seeking to file applications for adjustment of status with USCIS, they should refer to the website of the USCIS at www.uscis.gov/visabulletininfo, to determine which chart they should use and find the earliest date that he/she can file the I-485 application. When USCIS determines that there are immigrant visas available for the fiscal year, USCIS will state on its website that applicants may instead use the “Dates for Filing” charts in the Visa Bulletin. Otherwise, use the Final Action Date to decide the applicant’s eligibility. 

You will be able to find your priority date on the USCIS receipt notice.

How Does Cross Chargeability Work in a Green Card Application?

For applicants who face significant visa backlogs, cross chargeability is a powerful means that may allow those applicants to skip the line.  The cross-chargeability rule applies to both the process of I-485 adjustment of status and also to immigrant visa applications through the consular processing.  

According to the rule, in certain situations, an applicant may charge their visa to their spouse’s or parent’s country of birth rather than their own. The principal applicant may cross-charge to the derivative spouse’s country of birth, and the derivative spouse may cross-charge to the principal’s country of birth. It is important to note that though derivative children may cross-charge to either parent’s country of birth, parents may not cross-charge to a child’s country of birth.

In order to take advantage of the cross-chargeability, a derivative applicant must be seeking an immigrant visa at the same time with the principal applicant or will follow to join.  When a principal uses the derivative spouse’s country of chargeability, both applicants are deemed as principal applicants. 

How Can You Qualify for Employment Immigration?

Each visa category is different, which means the qualifications needed are all different.

Your two options are to either self-petition or for your employer to petition for you as a foreign worker. Within the employment-based immigration visa categories, EB-1A, EB-2 National Interest Waiver and EB-5 do not require a full time permanent job offer from a U.S. employer.  

What Are the Process Steps for Employment Based Green Card Application?

There are typically three stages of getting an employment-based green card (EB2 and EB3) in the US:

Stage 1: File PERM/Labor certification with the Department of Labor (“DOL”).

Stage 2: Once the PERM application is approved, file the Form I-140 immigration petition with the USCIS. If a beneficiary lives in the U.S. at the time of filing and his/her priority date is current, he/she may file the form I-485 concurrently with the Form I-140 immigantion petition. If the beneficiary lives outside of the U.S., he/she has to wait until the I-140 petition is approved before going through the consular processing. Make sure to check the Visa Bulletin published by the Department of State every month to know where you are in the line. 

Stage 3: If there is a visa backlog for the beneficiary, as soon as he/she sees that his/her priority date become earlier than the dates for filing visa applications on the Chart B of the Visa Bulletin, he/she can begin the consular processing or the adjustment of status process. However, sometimes, if the visa numbers have been used up in a given year, USCIS will instruct the stakeholders to file the I-485 application only when the beneficiary’s priority date becomes earlier than the final action dates listed on Chart A of the visa bulletin.   

Please be noted that some employment based visa categories do not require a labor certification. Therefore, the petitioner will simply skip Stage 1 as mentioned above.  Those visa categories include EB-1, EB-2 National Interest Waiver, EB-4 and EB-5.  EB-1 and EB-2 National Interest Waiver will use the Form I-140  to file the immigrant petition while EB-4 will use the Form I-360 and EB-5 will use the Form I-526. 

Why Should You Hire a Lawyer to Help With Employment-Based Immigration?

The green card process can be incredibly long depending on your type of eligibility and your country of birth. Yet, if you are planning to live and work in the United States permanently, obtaining a green card is your best and only solution. The Law Office of Lu & Associates can help you find a practical and optimal way to immigrate to the U.S. Our immigration lawyers are experts in immigration law. We will help individuals and businesses navigate through the complex immigration process with ease and confidence.  

To learn more about our services, contact us at the Law Office of Lu & Associates today.

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