Getting an Employment Visa for the United States

employment visa

Immigration law in the United States is complicated, especially when it comes to getting an employment visa. Here, I’m going to break down the law as simply as possible so you can understand the steps you need to take to get an employment visa.

How Many Employment Visas Are Issued Every Year?

Each fiscal year (October 1 through September 30), the United States issues approximately 140,000 employment visas. These visas are distributed based on many factors, including the preference system and the applicant’s country of origin.

Preference System

The first thing you need to understand about getting an employment visa for the United States is the preference system. There are 5 categories in the preference system.

First Preference EB-1

The EB-1 category is reserved for people who have “extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers.” Here are more details about those groups of people:

  • People with “extraordinary ability” must have extensive documentation proving their ability in their field of expertise. They must continue to work in that field when they reach the United States.
  • Outstanding professors and researchers require at least 3 years of experience and be recognized internationally. They must be coming to the U.S. to pursue tenure, tenure track teaching, or a similar research position at an institution of higher education.
  • Multinational executives or managers must have been employed in a managerial or executive capacity for at least one of the three prior years by the overseas affiliate, subsidiary, parent, or branch of the U.S. employer. They must be coming to the United States to work in an executive or managerial position.

As the term “first preference” implies, people in this category must prove that they are the best of the best in their field. They must be able to show that they have national or international recognition in their area of expertise.

People in the First Preference category don’t need to be sponsored by an employer to get an employment visa. However, they must continue to work in their field of acclaim after reaching the United States.

A minimum of 28.6% of all employment visas are issued to EB-1 individuals.  Any unused Fourth or Fifth Preference visas are allocated toward EB-1 visas as well.

Second Preference EB-2

EB-2 visas are reserved for people with advanced degrees; national interest waivers; or exceptional ability in the arts, sciences, or business.

  • Professionals with an advanced degree must have a higher degree than a bachelor’s or a bachelor’s degree with at least 5 years of progressive experience in the profession.
  • People with exceptional ability must have a degree of expertise significantly higher than what is usually found in the arts, science, or business.

An employer with a labor certification must sponsor those looking for EB-2 status.

28.6% of employment visas are reserved for those in the EB-2 category. Unused EB-1 visas can also be used for the Second Preference quota.

Third Preference EB-3

A further 28.6% of employment visas are given to Third Preference people: professionals, skilled workers, and other workers. There is an additional quota of 10,000 for “other workers.” How do you know if you qualify for one of these categories?

  • “Professionals” are people with jobs that require a bachelor’s degree (or foreign equivalent).
  • “Skilled workers” are people with jobs that require at least 2 years of work experience or training. These jobs can’t be seasonal or temporary.
  • “Other workers” perform unskilled labor that requires less than 2 years of training or experience and is not seasonal or temporary.

Regardless of which category your profession falls into, the work must be a type that lacks qualified workers already in the United States.

Fourth Preference EB-4

The Fourth Preference category is for “special immigrants” like religious workers, alien minors who are wards of U.S. courts, employees of U.S. foreign service posts, or retired employees of international organizations.

7.1% of the yearly limit of employment visas are reserved for EB-4 people in one of the following subgroups:

  • Broadcasters
  • Ministers of Religion
  • Certain Current or Former Employees of the U.S. Government Abroad
  • Certain former employees of the Panama Canal Company; Canal Zone Government; or the U.S. Government in the Panama Canal Zone
  • Iraqi or Afghan interpreters or translators who have worked with the U.S. armed forces for at least 12 months and meet other requirements. Limited to 50 visas per year.
  • Iraqi or Afghan nationals who have “provided faithful and valuable service” while employed by the United States government for at least a year and who are under serious threat as a result of this work
  • Certain foreign medical graduates
  • Certain retired international organization employees
  • Certain unmarried children of international organization employees
  • Certain surviving spouses of deceased international organization employees
  • Special immigrant juveniles
  • People recruited outside the United States who have served or are enlisted to serve in the U.S. Armed Forces
  • Certain retired NATO-6 civilians
  • Certain unmarried children of NATO-6 civilian employees
  • Certain surviving spouses of deceased NATO-6 civilian employees
  • People who are beneficiaries of labor certification applications or petitions filed before, and rendered void by, the terrorist acts on September 11, 2001

Fifth Preference EB-5

The EB-5 category is for immigrant investors who plan to invest significant amounts of money in a business that will create jobs for Americans. 7.1% of the total number of visas are reserved for Fifth Preference people. However, 3,000 visas are set aside for people who invest in a “targeted” employment area.

Family Members

If your visa petition is successful, your spouse and minor unmarried children (younger than 21) can apply for immigrant visas with you. They must go through the same process as you, including the application fees and medical exam. Same-sex spouses of U.S. citizens and Lawful Permanent Residents (LPRs) have the same immigration benefits as opposite-sex couples.

Priority Dates

Every person who files a petition to start the process of applying for an employment visa is given a “priority date” based on when they filed. The priority date is basically your spot in line to apply for a visa. In theory, visas are issued based on the order the petitions were filed. However, many factors can impact priority dates, especially the country of origin.

Certain countries have high numbers of applicants, and each country is capped at how many people can be approved each year. No more than 7% of the total visa quota can come from any country.

That means some countries have far more applicants than can be approved in one year. These “oversubscribed chargeability areas” are mainland China, El Salvador, Guatemala, Honduras, India, Mexico, Philippines, and Vietnam.

As of January 2020, people must have priority dates on or before dates as long ago as April 1, 2008 for “other workers” from mainland China and January 1, 2009 for third preference employees from India. That means you may need to wait several years for an employment visa if you are from one of these popular countries.

For more information, check out the Visa Bulletin.

Other priority dates are more recent, like October 1, 2018 for first preference people from El Salvador, Guatemala, Honduras, Mexico, Philippines, and Vietnam.

Cross-Chargeability

Certain situations would allow somebody to apply for a visa under a different country than the one they were born into. That can shorten the wait time for somebody from an oversubscribed country. Those situations are:

  • A person may choose the country of birth of their spouse
  • A child accompanying or joining to accompany a parent may select either parent’s country of birth as long as that parent qualifies for an immigrant visa and the country’s cap has not been reached for that fiscal year
  • Children born in a country that neither parent was a resident in can choose either parent’s country
  • A foreign national born in the United States “shall be considered as having been born in the country of which he is a citizen or subject, or, if he is not a citizen or subject of any country, in the last foreign country in which he had his residence as determined by the consular officer.”

The Application Process

The first step in the application process is to have your prospective employer obtain labor certification approval from the Department of Labor, then file an Immigrant Petition for Alien Worker, Form I-140 with the U.S. Citizenship and Immigration Services (USCIS) for the correct preference category.

One exception to this rule is people with “extraordinary abilities” in the first preference category, who can submit their own application.

After the USCIS approves your petition, they send it to the National Visa Center (NVC), which will assign you a case number.

Once your priority date makes you eligible, the NVC will tell you to complete Form DS-261, Choice of Address and Agent (unless you have an attorney, who will do this for you). Then, the NVC will tell you how and where to submit the appropriate fees.

Next, the NVC will ask for required immigrant visa documents like application forms and civil documents.

Fees

There are various fees associated with applying for an employment visa. Fees are subject to change and may vary depending on your country of origin. Some things you can expect to pay fees for include:

  • Filing of Immigrant Petition for Alien Worker (Form I-140) or Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). The fee is charged by USCIS.
  • Processing Form DS-260, the immigrant visa application
  • Required medical exam and vaccinations.
  • Translations
  • Photocopying charges
  • Obtaining required documents to apply for the visa
  • Expenses for travel to the U.S. Embassy or Consulate for a visa interview

Required Documents

Many documents are required to apply for an employment visa. Be prepared to provide the following:

  • Passport(s) valid for 6 months beyond your intended date of entering the United States (unless longer validity is requested).
  • Form DS-260, the Immigrant Visa and Alien Registration Application.
  • Two 2” x 2” photographs in the required format
  • Civil documents, such as marriage or birth certificates. Bring originals, legible photocopies, and translations (if needed) to your visa interview. Original documents and translations will be returned.
  • Financial support – proof that you will not become a public charge of the United States
  • Completed medical exam forms provided by the panel physician after your exam and vaccinations

Visa Interview

After your file is complete with the required documents, the NVC will schedule your interview appointment. They then send your entire file to the U.S. Consulate or Embassy, where you will have your visa interview.

You, your attorney, and your third-party agent (if applicable) will receive appointment emails or letters with the date and time of the interview and instructions on how to proceed.

Be sure to bring your passport and any other required documentation to your interview. A consular officer will interview and determine your eligibility for an employment visa and take digital fingerprint scans. After the interview, you will get back your original documents and translations.

Medical Exam and Vaccinations

All visa applicants, regardless of age, must undergo a medical examination from an authorized panel physician before their interview. They must also receive any required vaccinations, which may include:

  • Hepatitis A
  • Hepatitis B
  • Influenza
  • Influenza type b (Hib)
  • Measles
  • Meningococcal
  • Mumps
  • Pneumococcal
  • Pertussis
  • Polio
  • Rotavirus
  • Rubella
  • Tetanus and diphtheria toxoids
  • Varicella

Bring your vaccination records to your medical exam, if possible.

What Could Make Me Ineligible for a Visa?

Many things can make you ineligible for a visa, including things like:

  • Drug trafficking
  • Overstaying a previous visa
  • Submitting fraudulent documents

The consular office will let you know if you are ineligible for a visa and if there is a potential waiver of ineligibility.

Fraud or Misrepresentation of Facts

If you are found to be misrepresenting facts or committing fraud, you may become permanently ineligible to receive a U.S. Visa or enter the United States under any circumstances.

After You Get Your Visa

When you are issued your immigrant visa, you will also receive a sealed packet containing the documents you provided. DO NOT OPEN THE SEALED PACKET. The US immigration officials will open the packet when you enter the United States, and it can’t show evidence of tampering.

If you are the primary or principal applicant, you must enter the United States before or at the same time as your family members who also have visas.

Another Fee

After you receive your immigrant visa, you must pay the USCIS Immigrant Fee before you travel to the United States. You won’t be able to get a Permanent Resident Card (Form I-551 or Green Card) until you have paid this fee.

Entering the United States

A visa does not guarantee you access to the United States. It only grants you the right to travel to a port-of-entry and ask permission to enter the United States. U.S. Customs and Border Protection (CBP) have the authority to allow or deny you permission to enter the country. Make sure you review entry requirements before traveling to the U.S.

Your Permanent Resident Card, Form I-551 (also known as Alien Registration Card or green card) will be mailed to you after you have been admitted to the United States as a permanent resident and you have paid the USCIS fee.

Social Security Number Card

You may choose on your visa application to get your Social Security Number Card automatically after you enter the United States. If so, your card will be mailed to the U.S. address on your application form. You’ll get it in about 6 weeks. Otherwise, you can apply for a card after you arrive in the United States.

Wrapping Up

I can only cover so much information in one article. There are numerous details involved in immigration law. That’s why I recommend speaking to a lawyer about your case.

Should you have any questions or if you would like to schedule a consultation, please contact me by submitting the form or by calling me at (248) 630-3239.  I accept clients from across the U.S. and around the world.  My law office is conveniently located in Troy, Michigan for in-person meetings.  For phone consultation, you can reach me from any part of the United States or abroad.