The Employment division handles all employer-sponsored applications or petitions with the Department of Labor (DOL) and Department of Homeland Security (DHS). It also conducts internal immigration audits for clients and provides reports to employers to assess vulnerabilities and limit exposure prior to the government initiating investigations.

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EB 1 Extraordinary Ability  visa is available to individuals who have demonstrated extraordinary ability in the sciences, business, education, arts, or athletics.  This extraordinary ability is measured by sustained recognition at the highest levels by renown authorities in the same field.  Unlike other employment based visas, this category does not require an offer of employment to be granted.  This visa does require, however, extensive proof of success at the very highest levels.

In order to prove extraordinary ability, this visa requires at least 3 of the following criteria:

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
  • Evidence of your membership in associations in the field which demand outstanding achievement of their members
  • Evidence of published material about you in professional or major trade publications or other major media
  • Evidence that you have been asked to judge the work of others, either individually or on a panel
  • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
  • Evidence that your work has been displayed at artistic exhibitions or showcases
  • Evidence of your performance of a leading or critical role in distinguished organizations
  • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
  • Evidence of your commercial successes in the performing arts

This type of visa can also be given to extraordinary researchers or professors.  Again, it is essential to demonstrate success at the very highest levels.  For researchers or professors specifically, it is required that you have at least 3 years of teaching or research experience and that you enter the United States in order to pursue tenure or comparable research positions.  Extraordinary ability as a professor or researcher can be demonstrated by at least 2 of the following criteria:

  • Evidence of receipt of major prizes or awards for outstanding achievement
  • Evidence of membership in associations that require their members to demonstrate outstanding achievement
  • Evidence of published material in professional publications written by others about the alien’s work in the academic field
  • Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
  • Evidence of original scientific or scholarly research contributions in the field
  • Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

Finally, multinational managers and executives can also be eligible for the employment based category when employed at least 1 year within the past 3 by a firm or corporation and are looking to continue that work in the United States.  The employment prior to coming to the United States must have been in an executive or managerial capacity.

You can file for Asylum up to one year after arriving to the United States. If you pass that one year deadline, you may still qualify, but speak with an immigration attorney to assist you with your application. After filing your application, you can file for a work permit so you can work in the United States. Keep in mind that Asylum is a discretionary application, which means that even if you meet the substantive eligibility requirements for asylum, you may be denied asylum if you have a record of criminal or terrorist behavior, among other activities considered detrimental. The determination of asylum is based on substantial evidence on the record as a whole, and is credible in nature.

Other supporting documents to assist you with your application include Asylum a declaration on why you left your country, and what happened to you when living in your country.

After your application is granted, he or she is called an “Asylum.” An asylee’s spouse and children may be granted permission to reside and work in the United States. Because asylum is a temporary status, you can apply for other more permanent types of status after certain requirements are met.

Affirmative Asylum Overview

Immigrants residing lawfully in the Unites states can seek asylum through an affirmative process. Through this process the asylum seeker will have to have an interview conducted by an Asylum officer.

The affirmative asylum process will allow the immigrant to remain in the U.S while their application is pending. If the asylum is denied the Asylum seeker will be issued a Notice to Appear (NTA) before immigration court. Asylum applicants

Defensive Asylum Overview

If you are an immigrant facing removal proceedings you could apply for asylum and withholding of removal. Immigrants who are apprehended by Customs and Border Protection at time of entry are placed in detention. An asylum officer will provide a credible fear interview and determine whether the immigrant maintains credible fear of harm based on one of the five grounds or if the alien has been persecuted. If fear of persecution is legitimate they may opt to apply for asylum before an immigration judge.

EB 2 Classification National Waiver Interest Waiver | If you are a member of a profession that requires an advanced degree or an equivalent or a foreign national who has exceptional ability, you may be eligible for an employment based second preference visa.  As part of the application for this type of visa, a certification from the Department of Labor must be obtained.  Additionally, this category requires a job offer.  You may apply for a national interest waiver to avoid the labor certification requirement.

For a second preference employment visa based on an advanced degree, you must apply for a job that requires an advanced degree and you must possess that degree or its equivalent (a baccalaureate degree plus 5 years’ progressive work experience).  To demonstrate advanced education or equivalent experience, you must submit proof of a U.S. advanced degree or foreign equivalent or letters from current or former employers showing the requisite work experience.

If you are looking to qualify for a second preference employment based visa due to exceptional ability, you must possess “a degree of expertise significantly abova that ordinarily encountered in the sciences, arts, or business”.  Tis can be shown by providing at least 3 of the following:

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
  • Letters documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Other comparable evidence of eligibility is also acceptable.

To avoid the labor certification requirement, you must demonstrate that it is in the national interest of the United States for you to be employed here.  You may be eligible for this certification waiver if you can demonstrate that your work will be of great benefit to the United States.  You may do this by demonstrating the criteria listed above for exceptional ability.

If you are a member of a profession that requires an advanced degree or an equivalent or a foreign national who has exceptional ability, you may be eligible for an employment based second preference visa.  As part of the application for this type of visa, a certification from the Department of Labor must be obtained.  Additionally, this category requires a job offer.  You may apply for a national interest waiver to avoid the labor certification requirement.

For a second preference employment visa based on an advanced degree, you must apply for a job that requires an advanced degree and you must possess that degree or its equivalent (a baccalaureate degree plus 5 years’ progressive work experience).  To demonstrate advanced education or equivalent experience, you must submit proof of a U.S. advanced degree or foreign equivalent or letters from current or former employers showing the requisite work experience.

If you are looking to qualify for a second preference employment based visa due to exceptional ability, you must possess “a degree of expertise significantly abova that ordinarily encountered in the sciences, arts, or business”.  Tis can be shown by providing at least 3 of the following:

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
  • Letters documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Other comparable evidence of eligibility is also acceptable.

To avoid the labor certification requirement, you must demonstrate that it is in the national interest of the United States for you to be employed here.  You may be eligible for this certification waiver if you can demonstrate that your work will be of great benefit to the United States.  You may do this by demonstrating the criteria listed above for exceptional ability.

If you are a member of (EB 2 Exceptional Ability) a profession that requires an advanced degree or an equivalent or a foreign national who has exceptional ability, you may be eligible for an employment based second preference visa.  As part of the application for this type of visa, a certification from the Department of Labor must be obtained.  Additionally, this category requires a job offer.  You may apply for a national interest waiver to avoid the labor certification requirement.

For a second preference employment visa based on an advanced degree, you must apply for a job that requires an advanced degree and you must possess that degree or its equivalent (a baccalaureate degree plus 5 years’ progressive work experience).  To demonstrate advanced education or equivalent experience, you must submit proof of a U.S. advanced degree or foreign equivalent or letters from current or former employers showing the requisite work experience.

If you are looking to qualify for a second preference employment based visa due to exceptional ability, you must possess “a degree of expertise significantly abova that ordinarily encountered in the sciences, arts, or business”.  Tis can be shown by providing at least 3 of the following:

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
  • Letters documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Other comparable evidence of eligibility is also acceptable.

To avoid the labor certification requirement, you must demonstrate that it is in the national interest of the United States for you to be employed here.  You may be eligible for this certification waiver if you can demonstrate that your work will be of great benefit to the United States.  You may do this by demonstrating the criteria listed above for exceptional ability.

EB 3 Skilled Professionals | An individual may qualify for an employment based third preference visa if they are a member of a profession that requires a baccalaureate degree or a minimum of two years training or work experience.

As a skilled worker, you must demonstrate at least 2 years job experience or training.  Also, you must prove that the job you will be doing is one where there are insufficient workers in the United States.  This classification requires a Labor Certification and a full-time job offer.

Similarly, for professionals, you must demonstrate that you have a baccalaureate degree or foreign equivalent and that you will be doing a job for which there are insufficient workers in the United States.  You will also need a Labor Certification and full-time job offer.

If you are an unskilled worker (jobs requiring less than 2 years training or experience) you will need a petition filed on your behalf for a job for which there are insufficient workers in the United States.  You will also need a Labor Certification and a permanent, full-time job offer.

EB 5 Immigrant Investor Program allows foreign nationals to obtain residency in the U.S. upon investing $1,000,0000 (or at least $500,000 in high employment area, designated by the U.S. government).  A business filing an EB-5 Visa, will need to submit a business plan to the USCIS specifications.  The investment can be in the form of cash, equity, equipment, secured indebtedness, tangible property, or cash equivalent. In addition to the monetary investment, the investor must create 10 employments or more within a two year time period, excluding the investor and immediate family members.

E 2 Treaty Investor allows treaty foreign nationals to enter and work in the U.S. upon investing or creating a business.  There is no dollar amount required, however, the amount must be significant to operate the business and compensate the operator or operators. The treaty visa is given to individuals who are on the United States Department of State’s Treaty Countries list.  To qualify, investing a substantial amount has been made or about to be made, in a bona fide enterprise in the United States. The investor also needs to show that their purpose of entering the United States. A substantial amount of capital is considered to be purchasing an established business, or starting a new one. The maximum stat of this visa is two years, and will need to be renewed at the end of the second year.  Unmarried children and spouses are allowed to accompanied the investor and do not need to be from the one of the listed countries. Overall terms and conditions of the E-2 treaty visa must provide that relationship between investor and business is established, the employment requires executive, supervisory skills, and the terms and conditions of the employment have not changed.

Extraordinary Ability Achievement – Visas are available for individuals who demonstrate extraordinary ability in the sciences, arts, education, business or athletics, or who have a record of extraordinary achievement in the motion picture or television industry and have been nationally or internationally recognized for such achievements.  There are 4 different types of O – Visas:

  • O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
  • O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
  • O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance.  For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1
  • O-3: individuals who are the spouse or children of O-1’s and O-2’s

To qualify for these visas, you must demonstrate that you are at the very top of your field.  This is a bar higher than that required by employment based visas.

P– Internationally Recognized Athletes Artists This type of visa is a temporary employment visa for alien athletes, artists, and entertainers (as well as their spouses and children) who are coming to the United States for competitions or performances.  You must be internationally recognized to qualify for this visa.  The visa is valid for the length of the competition or performance not to exceed one year.  Additional extensions in increments of up to 1 year may also be granted in order to complete competitions or performances.  There are 4 different types of P visas:

  • P-1 applies to individual or team athletes, or members of an entertainment group (P-1B) that are internationally recognized. A maximum of 25,000 P visas are issued annually.
  • P-2 applies to artists or entertainers who will perform under a reciprocal exchange program.
  • P-3 applies to artists or entertainers who perform under a program that is culturally unique.
  • P-4 is for the spouse, or child under the age of 21, of a P-1, P-2, or P-3 alien and who is accompanying, or following to join, the alien.

An L-visa (Intracompany Transferee)  is a temporary visa that allows international companies to send their executives or managerial staff to work in the United States’ office.

An L-1A visa is for executive and managerial staff. To qualify for the L-visa, the executive or managerial staff member needs to be employed at the company abroad for a minimum of one year. For the employer to send their staff, they must provide proof of a relationship between the employee and company, such as being a parent company of the office in the United States, be branch office, subsidiary or affiliation. The staff member must prove to come to the United States to serve as an executive and managerial position. Under federal law, coming as an executive means that they have the ability to make decisions for the company without much oversight. Coming to the United States as a manager requires proof of employee supervision, control of the work of professional employees, management of organization, or department, or some type of component within the organization that the staff member is in charge of.  The maximum stay is 7 years with spouses allowing to work without restrictions.

An L-1B has the similar requirements as the L-1A. However, this visas is for staff members of a company that have specialized knowledge that is beyond ordinary and no common in organization and industry that the organization identifies itself. Specialized knowledge can consist of product specifications, research, equipment, techniques, management, and/or expertise in the organization’s processes and procedures.

If the company opens a new office in the United States, other requirements will need to be met for the L-visa. These requirements include but are not limited to, physical office space, have staff members employed for a minimum of one year in an executive position. It is important to consult with an immigration attorney prior to pursuing an L-visa.

A B-1 Business visa is a temporary visa. B-1 allows foreign nationals to enter into the U.S. to conduct business for a short period of time. Individuals who qualify for the B-1 Visa are those who are consultants, traveling for science, education or business conventions, settling an estate, negotiating contracts, participating in training and being an air crewmen as a deadhead. The B-1 visa does not only limit to these types of individuals. It is important to consult with an immigration attorney.

This visa is only granted for a short term time period that is no longer than six months. If you need to be in the United States for business purposes longer, another visa might be a better option. The visa is obtained at the U.S. Embassy and consulate abroad. The decision to enter is determined by a consulate officer.

You must provide proof to the officer that your intentions to stay in the Unites States are limited and business related. Documentation  that shows your intentions to stay in the United States for 6 months or less are ticket return travel documentation, ties to your home country such as a spouse that you need to return to, and/or evidence that your participation in business activities are limited. In addition, you must provide proof that you have sufficient finances to cover your staff within the United States.  Another requirement is providing proof that you are engaging in business while in the United States. This includes but not limited to, attending business meetings, consulting with associates, engaging in contract negotiations, taking orders or good, attending conferences, and other business activities.

Once you realize that you qualify and have the appropriate documentation, you will need to schedule an appointment for an interview with the United States Embassy and consulate in your home country. To schedule the appointment, you must fill out the appropriate application. With assistance, give us a call, and we can handle everything for you.

F1 Optional Practical Training allows foreign nationals to enter the U.S. to pursue an education. The visa is issued by U.S. Embassies and Consulates abroad upon showing admission to the U.S. school and ability to self-finance during stay in the U.S. To qualify and maintain F-1 status, the foreign national must maintain a full course of study. There is an option for the F-1 student to work in the United States, it is the Optional Practical Training program. The OPT option allow students to work temporary in the United States in occupations that directly relate to major being studied. Optional Practical Training allows a student to work only 20 hours a week, while school is in session.

I9 Audit In order to hire someone in the United States, an employer must complete an I-9 form to document verification of the employee’s identity and employment authorization (for both citizens and non-citizens).  This form requires that certain enumerated forms of identification be presented to an employer in order to verify that the employee is allowed to work in the United States

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KONARE LAW 2021. All Rights Reserved.