NONIMMIGRANT VISAS

Common Employment Based Visas

Below are explanations of nonimmigrant visas commonly processed by our firm. Each description is intended only as a brief introduction to the visa.

H Visas

Employers in the United State may use H nonimmigrant visas for foreign workers who are permitted to stay in the US for a specified temporary period. Professional workers, temporary workers in shortage occupations, nurses, and trainees are included in this visa category.

L Visas

The L nonimmigrant visa serves as an intracompany transferee visa that facilitates the transfer of high-level and essential employees from abroad to perform employment of a similar nature with an affiliated organization in the United States.

E Visas

E nonimmigrant visas are open to treaty traders and investors who enter the US with the purpose of engaging in substantial trade between the United States and their country of nationality. One may also enter the US as an E to direct and develop the operations of a business in which they have invested, or are in the process of actively investing. Lastly, one may enter the US as an E if he or she has the same nationality of a foreign employer who wishes to use his/her special qualifications to ensure efficient operation of the company in the US.

TN Visas

In conjunction with the signing of the North American Free Trade Agreement in 1994, the TN visa was offered as an alternative to the H-1B visa for Canadian and Mexican nationals.

Other Visas

Van Der Hout and Brigagliano also handles O visas for individuals of extraordinary ability or achievement, P visas for performing entertainers and athletes, and R visas for religious workers.

IMMIGRANT VISAS

Van Der Hout, Brigagliano & Nightingale prepares employment based Immigrant Visas for a variety of clients. There are several different steps necessary to obtain permanent residence through employment.

Step 1:
The Labor Certification Application

The first step to permanent residence in the United States is to obtain a labor certification from the Department of Labor (“DOL”) based on the fact that there are no qualified and available United States workers to fill the position in question. To this end, the employer must establish the minimum education and experience requirements for the position based on business necessity and must offer to pay the employee at least 95% of the prevailing wage as determined by the State Employment Security Agency (“SESA”). In addition, the employee must establish that he or she met all stated requirements prior to joining the sponsoring employer and the sponsoring employer must prove that they have engaged in a recruitment campaign to find a qualified United States worker.

Step 2:
The Immigrant Visa Petition (Form I-140)

After the employer has obtained a labor certification on behalf of the employee, the employer will then file an employment-based visa petition with the Immigration and Naturalization Service (“INS”) on the employee’s behalf. At that time, the employer must provide evidence of its ability to pay the prevailing wage and also will submit a letter to establish that the position offered is still open to the employee. If the employee documents that he or she possesses the necessary education and experience required for the job, and the employer documents that it is able to pay the prevailing wage to the satisfaction of the INS, the INS generally approves the visa petition.

Step 3:
Application for Permanent Residence through
Adjustment of Status or Consular Processing

There are two methods individuals with approved Visa Petitions can obtain permanent residence:. Adjustment of Status for those aliens who wish to receive residence while residing in the United States, or Consular Processing for aliens who wish to obtain a permanent residence stamp at a U.S. Consulate abroad, usually in their country of citizenship. Currently the Adjustment of Status application processes at the INS for a longer period that the Consular application processes at the Consulate abroad but this is, as with all government processing times, is subject to change.

The actual date on which the employee will be able to immigrate, through either process, depends on his or her priority date, i.e., the foreign national’s position on the employment-based immigrant visa waiting list as determined by the U.S. Department of State. The priority date is the date on which SESA received the labor certification application, assuming it is later approved. All employment-based preference categories have limited numbers of visas which are allocated on a world-wide basis. Immigrant visa availability depends on the number of qualified applicants for residence who have requested visas in a particular category.