What HR Needs to Know About Work Visas for Alien Employees

February 21 2021 - Your company or institution needs to attract the top talent to succeed, and you've found the perfect fit for a critical position - but the candidate is not a U.S. citizen.

This article will explain the five types of employment-based immigrant visas available to those wishing to work in the U.S. and comes from the office of noted NYC O1 Visa Lawyer Elektra Yao.

What are Employment-Based Visas?

The U.S. makes approximately 140,000 employment-based visas available annually for alien workers and their families. Priority is given to those workers who have a preferential combination of skill, education, experience, and ability. A worker residing in the U.S. on an employment-based visa can eventually obtain an employment-based green card.

EB-1 - Priority Workers

Individuals with "extraordinary abilities" are given first preference in obtaining employment-based visas.

The Bureau of U.S. Citizenship & Immigration Services defines individuals with extraordinary abilities as those having "extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation."

An award such as a Pulitzer Prize, an Oscar, an Olympic medal, a Nobel Prize, or similar international or national prize can prove extraordinary ability. In the alternative, an individual showing at least three of the following ten criteria can demonstrate extraordinary ability:

1. Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence;
2. Evidence of membership in associations in the field which demand outstanding achievement of their members;
3. Evidence of published material about the individual in professional or major trade publications or other major media;
4. Evidence that the individual has been asked to judge the work of others, either individually or on a panel;
5. Evidence of the individual's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
6. Evidence of the individual's authorship of scholarly articles in professional or major trade publications or other major media;
7. Evidence that the individual's work has been displayed at artistic exhibitions or showcases;
8. Evidence of the individual's performance of a leading or critical role in distinguished organizations;
9. Evidence that the individual commands a high salary or other significantly high remuneration in relation to others in the field;
10. Evidence of the individual's commercial successes in the performing arts.

These individuals typically self-petition for an employment-based EB-1 visa by filing an I-140 Petition for Alien Worker and supporting evidence with the Bureau of U.S. Citizenship & Immigration Services.

The following two types of workers also may qualify for an EB-1 visa:

"Outstanding" Professors or Researchers

In order to be considered "outstanding," an alien professor or researcher must have at least three years of teaching or research in their particular academic field and show at least two of the following:

1. Evidence of receipt of major prizes or awards for outstanding achievement;
2. Evidence of membership in associations that require their members to demonstrate outstanding achievement;
3. Evidence of published material in professional publications written by others about the alien's work in the academic field;
4. Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field;
5. Evidence of original scientific or scholarly research contributions in the field;
6. Evidence of authorship of scholarly books or articles with international circulation in the field.

An outstanding professor or researcher must be sponsored by an employer, who files the I-140 Petition for Alien Worker along with the offer of employment and supporting documentation with the Bureau of U.S. Citizenship & Immigration Services.

Multinational Managers or Executives of U.S. Companies

A U.S. employer may petition to bring an alien manager or executive to the U.S. if that alien has been in their employ for at least three years.

EB-2 - Professionals Holding Advanced Degrees/Individuals With Exceptional Ability

Individuals seeking an EB-2 visa must also have either a national interest waiver or an individual labor certification from the Department of Labor on Form ETA-750. These individuals either hold advanced degrees, can show five years of progressive post-baccalaureate experience in their area of expertise, or can show exceptional ability in the sciences, arts, or in business.

EB-3 - Skilled Workers; Professionals; "Other Workers"

Skilled workers are those offered positions in the U.S. that are not seasonal or temporary, and they must have at least two (2) years of experience or training.

Professionals must possess a U.S. baccalaureate degree or foreign equivalent that is typically required for the position offered, and the employer must show that there are no U.S. nationals available to take the position.

"Other workers" are those with at least two years of experience or training that are offered a position that cannot be filled by a U.S. national. Employers should be aware that there is a backlog in applications for "other workers" and it may take several years for an applicant to be approved.

EB-4 - Special Immigrants

"Special immigrants" are U.S. residents returning to the U.S. after an authorized stay abroad, and "Persons Reacquiring U.S. Citizenship." These individuals must file Form I-360 with the USCIS along with supporting evidence of eligibility.

The following individuals may also qualify as "special immigrants:"

1. Religious workers;
2. Employees of the U.S. government or of the American Institute in Taiwan;
3. Panama Canal Treaty employees and their immediate relatives;
4. International Medical Graduates (IMG's);
5. Special Immigrant Juveniles (SIJ);
6. Certain U.S. service members and NATO civilian employees;
7. BBG broadcasters;
8. Translators with the US armed forces;
9. Certain citizens of Iraq and Afghanistan who provided assistance to the U.S. forces;
10. Spouses, children, and parents of a U.S. citizen or a Legal Permanent Resident who had been subjected to extreme battery and cruelty by that person.

EB-5 - Investors

Ten thousand employment-based immigrant visas are available each year to qualified foreign nationals seeking permanent resident status in the U.S. on the basis of their investment in a new commercial enterprise. What qualifies as a "new commercial enterprise" is broadly construed and may include restructuring or expanding an existing business. Visit the USCIS website to learn more.

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