Immigrant Work Visas - Fuller & Fuller LLP

Immigrant Work Visas

We're experts in immigrant work visas.

First, Second and Third Preference Categories

Immigrant visas allow foreign nationals to become Lawful Permanent Residents (also known as Green Card Holders). Lawful Permanent Residents are authorized to reside in the U.S. on a permanent basis and to eventually apply for U.S. Citizenship should they wish to do so. There are two main pathways by which to obtain lawful permanent residence—employment and family. The below article will cover the main employment-based immigrant visa pathways. To learn more about the family-based pathways to an immigrant visa, please review the “Family Based Immigration” section of our firm’s website.

The Immigration Act of 1990 dramatically restructured the employment-based ("EB") immigrant visa categories. There are currently three common preference categories for employment based immigration: First Preference, priority workers (EB-1); Second Preference, workers with advanced degrees and those of exceptional ability (EB-2); and Third Preference, professionals, skilled workers, and other workers (EB-3). Although there are other preference categories, this article will provide an overview only of the first three preference categories.

In obtaining employment based immigrant visa classification, the first step is to request and receive an approved immigrant petition qualifying the alien in one of the aforementioned referenced categories. Once the petition approval is obtained from the Immigration Service there are two methods of filing for permanent resident status, known as Consular Processing or Adjustment of Status.

The first preference category, EB-1: Priority Workers, is composed of 3 sub-categories: (1) aliens with extraordinary ability; (2) outstanding professors and researchers; and (3) certain multinational executives and managers. An employer able to demonstrate that an employee qualifies in an EB-1 capacity significantly reduces the processing time in obtaining permanent resident status for an employee.

Aliens of extraordinary ability are defined by statute as those who can document that they have recognized extraordinary ability in the sciences, arts, education, business or athletics as demonstrated by sustained national or international acclaim. The major benefit in placing a worker in this category is that no job offer or labor certification is required. The process is thereby expedited to 2 months. Generally, this status is reserved for those individuals at the very top of their field of endeavor. 8 CFR§204.5(h)(2).

In order to qualify as an outstanding researcher, the alien must (1) be internationally recognized as outstanding in a specific academic area; (2) have a minimum of three years of experience teaching or researching in that area; and (3) be entering the U.S. in a tenure or tenure track teaching or comparable research position with a private employer having at least three full-time researchers and documented accomplishments in the field. An employer must be willing to offer the alien worker a permanent position of employment. Specific standards are set forth to determine that an alien has been recognized as internationally outstanding. 8 CFR§204.5(i).

A multinational manager or executiveis eligible for EB-1 status if he or she has been employed outside the U.S. in a managerial or executive capacity for at least one of the three years preceding the filing of the petition. 8 CFR§204.5(j). The past employment must have been with a branch, parent, affiliate, or subsidiary of the proposed employer. The proposed employment must be in a similar executive or a managerial capacity. Many companies use this category as a next step for employee who they initially sponsored in L-1A status.

The second preference category, EB-2: Aliens who are Members of the Professions requires labor certifications except in cases of "national interest" or in Schedule A, Group II pre-certification.8 CFR§204.5(h)(2).

EB-2 workers have two classifications: (1) aliens who are members of the professions holding advanced degrees and (2) aliens of exceptional ability in the sciences, arts or business who will substantially benefit the national economy, cultural, or educational interests.

A profession is defined as a position requiring at least a baccalaureate or its equivalent. An advanced degree is defined as any degree beyond the baccalaureate or a combination of baccalaureate and experience.

EB-2 workers of exceptional ability must demonstrate that they have expertise significantly above the ordinary. The standard of exceptional ability is generally not as strict as extraordinary ability.

The third preference category, EB-3: skilled, professional and other workers requires individual labor certification. EB-3 workers have three classifications: defined in the Immigration Regulations 8 CFR§204.5(l), (1) skilled workers with at least two years experience; (2) professionals with a baccalaureate degree required for the job position; and (3) other workers with less than two years experience required for the position. Skilled workers are defined as those workers in positions which require a minimum of two years of training or experience. Post secondary education counts as training. Professionals must possess a baccalaureate degree or foreign equivalent (equivalency based on professional years of experience is not permitted), and the petitioner must demonstrate that such a degree is the normal requirement for entry into the profession. Other workers are those individuals in positions which require less than two years of training or experience.

Consular Processing Versus Adjustment of Status

Once the petition approval is obtained from the Immigration Service there are two methods of filing for permanent resident status, known as Consular Processing or Adjustment of Status.

Adjustment of Status involves filing an application with the U.S. Citizenship and Immigration Services (“USCIS”) requesting that you be “adjusted” from your current temporary nonimmigrant visa status to lawful permanent resident status while you are in the United States. After reviewing your application, USCIS will either schedule you for an interview at your local USCIS Field Office or will approve your application and mail your lawful permanent resident (“green”) card to you. Depending upon your country of birth, the immigrant visa category under which you are applying, and the number of immigrant visa applications received by USCIS during the fiscal year in which you are applying, your application for adjustment of status may be able to be filed concurrently with your immigrant visa petition or may need to be filed later, once an immigrant visa number is available to you. At the same time that you submit an application for adjustment of status, you can also submit applications for temporary work authorization and temporary travel permission.

Consular Processing involves completing your immigrant visa process at a U.S. Embassy or Consulate outside the United States, generally one located in your country of citizenship or country of residence. Once your immigrant visa petition is approved, USCIS will send a copy of the Approval Notice to the National Visa Center. Upon receipt of your civil documents (your birth certificate, police records e.t.c.) an interview will be scheduled for you to attend at the relevant overseas Embassy or Consulate.

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Where and How to Apply for an Immigrant Work Visa?

Contact Fuller and Fuller today to get started on your application.

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Our Process

  • Please reach out to us by email or phone to schedule a consultation with one of our attorneys.
  • Our attorneys will work with you to select the correct immigrant visa category to meet your needs. We will also discuss the pros and cons of adjustment of status and consular processing to help you determine which option is best for you.
  • We will then provide you with a checklist of documents needed from the employer and from the prospective foreign national employee. We will also provide you with an estimated flat fee for the case and discuss the filing fees and other disbursement expenses you can anticipate.
  • We will prepare the required documents for your petition and/or application and will send them to you for review and signature.
  • We will then submit your petition and/or application to the U.S. Citizenship and Immigration Services.
  • We will track the progress of your case and keep you updated. We will assist you with the various steps involved in the adjustment of status or consular processing process. We will also provide you with information on your new lawful permanent resident status and the rights and responsibilities that come with your new status.

How To Prepare

Prior to a consultation with one of our attorneys, please be prepared with the following information: A copy of the prospective foreign national employee’s most up-t0-date resume; Information on the prospective foreign national employee’s current U.S. immigration status (if any) and any previous U.S. visas held; Information on the type and duration of work that the prospective foreign national employee is expected to complete in the U.S.

Frequently asked Questions

  • How long does it take to get lawful permanent residence (a green card)?

    Unless you fall within the EB-1, EB-2 National Interest Waiver, or EB-2, Schedule A, Group II categories, your employe will first need to complete the PERM Labor Certification process on your behalf. Your immigrant visa petition will then need to be submitted to USCIS by courier. You can choose to submit your petition or application under USCIS’ Premium Processing Service (for an additional government filing fee) if you would like a guaranteed 15-day or 45-day adjudication period (depending upon the type of immigrant visa application). Otherwise, under USCIS’ Regular Processing, processing times will vary based upon USCIS’ workload at the time of filing. Depending upon your individual situation, you may either elect to file to Adjust Status within the United States or to Consular Process. Adjustment of Status applications are not eligible for Premium Processing and processing times will vary depending upon USCIS’ workload at the time of filing. In some cases, an Adjustment of Status application can be filed concurrently with an immigrant visa petition and in other cases, the Adjustment of Status application will need to be filed later, when an immigrant visa number is available to you. Consular Processing first involves USCIS sending notice of the approval of your immigrant visa petition to the National Visa Center. The National Visa Center then contacts you when an immigrant visa number is available to you to gather documents and information from you. Once your documents and information have been received and the National Visa Center determines that your case is “documentarily qualified”, they will work with the appropriate U.S. Consular post to schedule you an immigrant visa interview. National Visa Center processing times and U.S. Consular post interview scheduling times vary based upon workload at the time of filing.

  • How can I check the status of a petition or application filed with USCIS?

    You can check the status of a petition or application filed with USCIS by entering your USCIS Receipt Number (a 13-digit number starting with 3 letters which appears in the top left corner of your USCIS Receipt Notice) on the USCIS Case Status Website.

  • How can I check the USCIS Processing Times for my petition or application type?

    You can check the USCIS Processing Times for your petition or application type on the USCIS Case Processing Times Website. You will need to enter the type of form filed, the form category, and the Field Office or Service Center at which your case is pending. The Field Office handling your case will be the Field Office serving your place of residence. You can locate the correct Field Office here. The Service Center handling your case can be determined by looking at the first three letters of your Receipt Number. The Service Center Codes are:  LIN—Nebraska Service Center;  EAC—Vermont Service Center;  IOE—USCIS Electronic Immigration System;  WAC—California Service Center;  MSC—Missouri Service Center/National Benefits Center  NBC—National Benefits Center;  SRC—Texas Service Center; or  YSC—Potomac Service Center.

  • How can I check the wait times for an immigrant visa interview appointment at various U.S. Consular Posts?

    Unfortunately, there is not currently a mechanism for checking wait times for immigrant visa appointments.

  • Am I required to contact USCIS if my address changes and how do I do so?

    All non-citizens (including lawful permanent residents) are required to notify USCIS within 10 days of changing their address. You can notify USCIS of your new address by filling in Form AR-11 and submitting it electronically.

  • Can my family accompany me? Can they work/attend school as lawful permanent residents?

    Spouses and children under the age of 21 are eligible to obtain lawful permanent residence as your dependents. Please note that your immigrant visa process must have progressed to meet certain milestones prior to your child’s 21st birthday in order to protect your child from “aging out” of the process if your immigrant visa process is still pending when they turn 21. Please let your attorney know as soon as possible if you have any children who are within 5 years of their 21st birthday so that we can prepare appropriately. Once your family are lawful permanent residents, they may work for any U.S. employer and may attend school.