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  • Mayank Mohan

Employment Based U.S. Immigration: Overview


Interested in taking a quick overview of Employment Based U.S. Immigration (H1B, L1, O1, EB1, EB2, EB3)?

  • Relevant Non-Immigrant Visa Options

  • Non-Immigrant Visa allows the employee to work in the United States temporarily.

  • Several options are available depending on business’ requirements, employee’s immigration history & professional background. Most common are:

  • H1-B Visa

  • L1 Visa

  • O1 Visa

  • H1B Visa:

  • Available to employers who want to hire foreign nationals in specialty occupations – occupations requiring a minimum of 4 year bachelor’s degree or equivalent.

  • Brief overview of the process:

  • Electronic Registration

  • Lottery selection for filing petition

  • File Labor Conditional Application (LCA) with Department (DOL)

  • File form I-129 with US Citizenship & Immigration Services (USCIS)

  • USCIS Quota for fresh H1B visas

  • 20,000 H1B visas for persons with an advanced degree (Masters +) from a public school in the United States

  • 65,000 H1B for others

  • Register with USCIS electronic database in March; USCIS conducts lottery for the electronically registered applicants; If selected file complete petition within 90 days of lottery declaration

  • If H1B petition is approved before October 1, then applicant can start working on October 1 in H1B status otherwise start after approval.

  • Application Costs:

  • Filing Fee to USCIS

  • I-129 fee: $460

  • Fraud prevention fee: $500

  • ACWIA fee:$750 if 25 or less full- time employees in the organization; $1500 if more than 25 full- time employees in the organization

  • PL 114-113 fees, if applicable: $4000

  • Premium processing: $1440 (decision received in 2 weeks)

  • Basic Application requirements:

  • Job offer letter with detailed job description, requirements

  • Contract between employer and prospective employee

  • Credentials of the prospective employee (resume, degree, transcripts, salary history)

  • Information about the employer

  • L1 Visa

  • L1 visa is available to employers who want to recruit managers, executives and specialized skill workers from their parent, subsidiary, or affiliate companies outside the United States.

  • L1 Visa Application Steps:

  • File form I-129 with US Citizenship & Immigration Services (USCIS)

  • USCIS decision

  • Change status to L1 if already in the U.S. on another visa eligible for change of status or appear for consular processing of L1

  • Costs:

  • I-129 fee: $460

  • Fraud prevention fee: $500

  • ACWIA fee:$750 if 25 or less full- time employees in the organization; $1500 if > 25 full- time employees in the organization

  • PL 113 – 114 fee, if applicable: $4500

  • Premium processing: $1440

  • Application requirements:

  • Demonstrate that the overseas company has been in operation

  • Demonstrate the US company has been in operation or is a new office

  • Demonstrate the affiliate, parent-subsidiary relationship

  • The prospective employee has been employed with the overseas company for at least 1 continuous year in the past 3 years

  • Show Managerial or Specialized Skills role (L1A/B)

  • O1 Visa

  • The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the:

  • sciences, arts, education, business;

  • athletics; or

  • demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements

  • Evidence for O1 Visa petition must show that the beneficiary has received a major, internationally recognized award, such as a Nobel Prize, OR evidence of at least (3) three of the following:

  • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor

  • Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field

  • Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought

  • Original scientific, scholarly, or business-related contributions of major significance in the field

  • Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought

  • A high salary or other remuneration for services as evidenced by contracts or other reliable evidence

  • Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought

  • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation

  • Application processing steps:

  • O1 visa petition preparation

  • USCIS decision

  • Application costs:

  • USCIS fee (non-premium processing or regular process): $460

  • USCIS Premium processing fee: $1440

  • Relevant Immigrant Visa Options

  • Immigrant Visa also referred to as the Green Card. The Green card allows permanent stay in US

  • Categories of Immigrant Visa:

  • Family

  • Humanitarian

  • Business

  • Within the business category following options are available:

  • EB1;

  • EB2;

  • EB3; and

  • EB4/EB5 – Not discussed here

  • EB1

  • EB1 is generally suggested for L1A and O1 visa holders but others qualify as well

  • All countries have a quota for green cards; in EB1 category the quota used to be generally available but anymore. Still faster route to green card for some countries.

  • Application processing

  • Prepare application (significant step)

  • File I-140

  • File I-485: Quota dependent

  • Application costs:

  • USCIS fee for I-140: $700

  • USCIS fee for I-485: $1225 (per person e.g. spouse, children);

  • USCIS fee for premium processing: $1440

  • EB2/3

  • EB2 is suggested for individuals with advanced degrees in their field of endeavor

  • EB3 is suggested for other skilled and unskilled workers

  • For EB 2/3 categories the quota is generally currently available (for most countries)

  • Application processing

  • Prevailing wage determination (PWD) with DOL

  • Recruitment effort

  • Labor Certification

  • The above 3 steps can be avoided if the beneficiary qualifies for a National Interest Waiver (NIW) in the EB2 category.

  • I-140

  • I-485 : Filing is quota dependent

  • Application costs:

  • USCIS fee for I-140: $700

  • USCIS fee for I-485: $1225 (per person e.g. spouse, children);

  • USCIS fee for premium processing: $1440

  • Quotas in Immigrant Visa

  • Immigrant Visa (Green Card) is available on a quota. Quota availability is determined by country of birth of the employee (referred to as “country of chargeability”).

  • EB2 category is available immediately for all countries of chargeability except India and China.

  • EB3 is also available immediately for all countries of chargeability except India, China and Philippines.

  • EB1 is globally retrogressed (currently around ~ 3 years of lag).