Employment Based

Employers can hire foreign workers temporarily using Non-Immigrant Visas or permanently using Immigrant Visas, which lead to permanent residence (green cards). Jonathan has represented employers from all areas of endeavors, and in all sizes. Specifically, he has worked with physicians, nurses, scientific researchers, engineers, IT professionals, food industry workers, and agricultural workers among others.

Many of the issues for employers to consider, including the wage and working conditions that have to afforded foreign workers, as well as advertisements and recruiting for the positions they wish their foreign workers to fill are similar for both Non-Immigrant Visas and Immigrant Visas. Therefore, we will discuss the entire process from hiring the foreign worker as a Non-Immigrant to fulfilling the process of their obtaining permanent residence, so that both employers and employees are fully aware of the issues involved in the entire process, and there are no surprises along the line.

Employment Based Non-Immigrant Visas

There are a wide-variety of Non-Immigrant Visas based on employment, including H-1B visas for positions that normally require a bachelor’s degree to complete, TN visas for Canadian and Mexican workers in specific categories of occupations, O visas for aliens of extraordinary ability in the Arts, Business, or Sciences, L visas for Inter-company transferees — either managers or those with “specialized knowledge”, E visas for investors and those furthering investments from specific countries, E visas for religious workers, and H-2B visas for seasonal workers who will not be employed year-round (these are primarily for agricultural workers or hotel/resort workers). There are many others, but these are the primary categories used for workers. Please contact us directly if your particular desired situation is not here listed.

Medical students/residents are primarily on J-1 visas, with a requirement that they return to their home country for two years once before they can change their visa status to H-1B or apply for permanent residence. The standard waiver for this requirement comes through the Conrad 30 program, which allows for waivers of the two-year home residency requirement where the physician will work in a medically underserved area. As the name implies, this program is limited and very state-specific. As foreign medical students near an end to their medical school and begin looking at resident programs, they need to also begin planning for their J waiver options. We have extensive experience in this field, both in Conrad 30 waivers, as well as other waivers such as persecution and hardship waivers.

Employment-based non-immigrant visas each have very specific requirements we can discuss with you, but please keep in mind that there have recently been increased enforcement of H-1B, L, and R visa employers, including site-visits by government officials, and audits of records employers are required to maintain.  Therefore, we can work with you to ensure compliance with relevant regulations and make sure that you use the right visa category for your needs.

Employment Based Immigrant Visas

There are four primary ways that employees can obtain permanent residence based on employment. The largest and most common way is through the PERM Labor Certification process. This requires employers to demonstrate to the Department of Labor that there are no US workers minimally qualified for the position offered to the foreign worker (and ready, willing, and able to accept the position on the conditions stated).

There are two primary categories of employees that do not need an employer to sponsor them, and also no labor certification. The Alien of Extraordinary Ability (AEA) and National Interest Waiver (NIW) employees file their immigrant petitions without needing employer sponsorship. The AEA category is for those at the very top of their field, in the arts, business, or scientific fields. The NIW category, however, is reserved for those whose work is more important to the national interest of the United States than the requirement of employers to go through the labor certification process. Outstanding Researchers/Professors do not need a labor certification, but do require employer sponsorship, and must have at least three years experience after completing their highest level of education (or demonstrate that their work during that program was also “outstanding”). The AEA, OR, and NIW categories all require evidence that the individuals are recognized as performing at a high level. This typically includes published articles, citations to your work, news articles about your work, significant awards, or other tangible evidence of the acclaim you have earned. We have to obtain letters from experts in your field who can confirm your stature. It is very important which category we file in as the EB-1 category (AEA and OR) is much more advantageous for most researchers than the EB-2 category (which includes NIW petitions). 

Additionally, some workers who need employer sponsorship, and who the Department of Labor confirm are in shortage occupations can bypass the labor certification process and file their immigrant visa directly, these are called Schedule A visa petitions, and are used primarily by Nurses. Please contact us for further information on these categories of immigrant visas.

Lastly, Jonathan has experience filing suit against the government when they fail to make timely decisions on employment-based applications, as well as litigating denials to the administrative panels and even federal courts. We can bring this experience to bear on your behalf.