One of the most common questions is, “How do I get a work visa?”  Work-based visas normally require the sponsorship of an employer.  Therefore, you generally have know the company you will be working for before you can obtain a work visa because they have to submit the application letting USCIS know that they wish to hire you.

Oftentimes, the person asking the question also asks, “Can you get me a visa?”  As an immigration attorney, I do work with a number of companies to help them bring foreign workers to the U.S., however, we do not do the actual matching of employer to employee.  There are occasions where a company may not have an immigration attorney and the company asks the potential employee to find an immigration attorney to work on the petition, but they have typically already found each other before we are retained to help in the immigration process. So, we can either initially be brought in to the case by the employee or the employer.

Note though that there are certain situations where a person may not have to find an employer.  In some cases you may “self-sponsor”.  An E-1 Treaty Trader or E-2 Treaty Investor visa can be considered to be a self-sponsored visa as the person may have started a company or is planning to start a company involved in trade to the U.S. or opening a business within the U.S.  A wide variety of businesses may qualify for the E-2 visa for example: restaurants, dental practices, technology consulting, and various types of retail businesses.

Another self-sponsoring situation may arise for an L-1 Intracompany Transferee.  An L-1 visa allows a foreign company to transfer or send a manager or executive to the U.S. in order to establish a U.S. office.  Therefore the CEO or owner of a foreign company may use this type of visa to “self-sponsor” himself or herself to the U.S.

Other self-sponsored possibilities fall in the immigrant visa category more commonly known as green cards.  One option is the EB-1 Priority worker visa category.  This category is for a person with “extraordinary ability”.  Persons qualifying for this type of green card typically have received significant national or international recognition and awards and have often been published in their fields.

Another self-sponsored green card is the EB-5 Immigrant investor category.  An EB-5 green card typically requires a $1 million dollar investment.

This is intended to be a short overview of the possibilities and is not an exclusive list.  More info about each of the categories can be found by clicking on the links.  Also check out our “Quick Link to Immigration” page for a list of various types of visas.

Since the L-1 visa requires that the employee must have been employed by the foreign employer for at least one year out of the last three years, it may not be likely for a student to have had this prior experience, but it is possible. Requirements for the L-1 visa follow:

Non-Immigrant Visas: L-1- Intra-Company Transferee

An L-1 visa is suitable for a foreign company that wishes to transfer an
executive or manager to the U.S. to supervise an office in the U.S. An L-1
visa can also be used to set up a new subsidiary, affiliate or branch office in
the U.S. An L-1 visa can also be used to bring specialized knowledge employees
of foreign companies that have related U.S. branches, subsidiaries, affiliates
or joint venture partners.

Eligibility

1) A qualifying relationship must exist between the U.S. company and the
foreign company abroad.

2) Both the foreign company and the U.S. company must continue to remain
open and active for the entire duration of the L-1 employment in the U.S. If
the foreign company ceases to exist or ceases business activities, the L-1 visa
will result in loss of status.

3) The transferee, must have been employed overseas by the foreign company
for at least one year within the last three years and transferee will be
performing duties in the U.S. for the same or related company.

4) The transferee must be a manager, executive or a specialized knowledge
professional.

5) Transferees in Managerial and Executive positions are given L-1A visas.
They may be admitted initially for 3 years if there is an existing company or 1
year if opening a new office. Extensions are granted in 2 year increments for
a maximum of 7 years.

6) Transferees in specialty positions are given L-1B visas. They may be
admitted initially for 3 years if there is an existing company or 1 year if
coming to a newly established company. Extensions are granted in 2 year
increments for a maximum of 5 years.

7) Spouse and children of L-1 visa holders can accompany the principal visa
holder on L-2 visas. L-2 spouses can apply for employment authorization (work
permits).

Non-Immigrant Visa: O Visas – Persons with Extraordinary Ability

O Visas

The O visa is an option for individuals with extraordinary ability in the sciences, arts, education, business and athletics, or extraordinary achievement in motion picture and television production, and essential support personnel. O visas are temporary work visas granted for a specific event such as a tour, lecture series or project or for a temporary work contract.

O Visa Requirements

Supporting documentation for an O visa should include:

1) A written advisory opinion from a peer group (including labor organizations) or a person designated by the group with expertise in the alien’s area of ability;

2) A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed;

3) Evidence that the alien has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least three of the following:

a) Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

b) Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized international experts;

c) Published material in professional or major trade publications, newspapers or other major media about the alien and his work in the field for which classification is sought;

d) Original scientific, scholarly, or business-related contributions of major significance in the field;

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

f) A high salary or other remuneration for services as evidenced by contracts or other reliable evidence;

g) 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;

h) Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

If the above standards do not readily apply to the alien’s occupation, the petitioner may submit comparable evidence in order to establish the alien’s eligibility.

Assistants of O Visa Holders

Only individuals, not groups qualify for the O-1 visa category. However, for athletes and members of the entertainment industry, it is possible for an assistant who is an integral part of the performance, who has skills and experience which are not available in the U.S, to apply for a O-2 visa to accompany the O-1 visa holder.

Who may apply for the visa?

The employer must file a petition on behalf of the individual in the U.S. Once the petition is approved, the individual may apply for the O visa at a U.S. consulate or embassy.

Spouses, Children & Partners

Spouses and/or children under the age of 21 who wish to accompany or join the principal visa holder in the U.S. for the duration of his/her stay require derivative O-3 visas. To qualify for a dependent visa, applicants must prove their relationship to the principal applicant, i.e. spouses: original marriage certificate, children: original birth certificate. Spouses and/or children who do not intend to reside in the U.S. with the principal visa holder, but visit for vacations only, may be eligible to apply for a B-2 visitor visa. The holder of an O-3 visa may not work. If he or she wishes to work, the O-3 visa holder will need to apply for an appropriate work visa. An O-3 visa holder may however attend school or college.

Applying for a green card from an O visa

Dual intent is allowed for those who are on O-1 visas. An O-1 visa holder may apply for permanent residency or a “green card” without creating a problem with his/her current O-1 status. The requirements necessary for an O-1 visa are similar to the requirements for an EB-1A green card – Aliens of Extraordinary Ability. The benefit is that a Labor Certification would not be required for this type of green card application.

The next part of this series on “Options for F-1 Student Visa Holders After Graduation” will discuss E investor visa options.

There are 3 steps to obtaining a Green Card (Permanent Residence) through employer sponsorship.

Step 1: PERM Labor Certification & Recruitment

Step 2: I-140 Immigrant Petition for Alien Worker

Step 3: I-485 Adjustment of Status Application

Step 1 – PERM Labor Certification:

• PERM Labor Certification first involves advertising the position to show that there are no qualified U.S. workers that want the position.
• The attorney prepares a prevailing wage request based on information obtained from the company regarding the qualifications for the position and the salary offered. The attorney prepares an advertisement for the position and makes a prevailing wage request to the State Workforce Agency (SWA).
• Once the prevailing wage is issued by the SWA, the attorney provides the required guidelines on where and how often the ad must be run. The guidelines for this process are very specific and have to be tracked during the recruitment period.
• The advertising involves 2 Sunday ads in the major newspaper where the job is located, and a 30-day posting with the State Workforce Agency. Additionally other recruitment must be conducted and documented such as participation in job fairs, campus placement offices, employer’s website, placement agencies, local papers etc.
• After the required 30 day recruitment period is completed, the PERM petition is filed with the Department of Labor (DOL).
• It takes the DOL an estimated 1 to 6 months to provide the PERM labor certification – though times may vary from case to case and may also vary depending on the DOL’s caseload.

Step 2 – I-140 Immigrant Petition for Alien Worker:
• Once the PERM Labor Certification is approved, the Alien Worker Petition is filed.
• The I-140 Petition is submitted to the USCIS with documentation showing the employee’s experience and qualifications such as diploma, resume, transcript.
• The employer provides documentation such as brochures and information on the work and history of the company as well as the company’s last three years’ tax returns. Tax returns are required to show that the employer has the ability to pay the salary offered to the employee.
• The employer drafts a letter about the background of the company as well as detailing the specific position and how the particular employee meets the required experience for the position.
• Processing time is approximately 9 months, but may vary from case to case and on the caseload currently being processed by USCIS.

Step 3 – I-485 Adjustment of Status:
• After the Alien Worker Petition is approved, the employee is eligible to file for Adjustment of Status. The adjustment of status process is the application for the actual green card.
• The adjustment of status application cannot be filed until the employer’s priority date is current. The Department of State issues these dates every month and are subject to change each month. Visa priority dates may also retrogress, meaning visa numbers may become backlogged and therefore unavailable. Whether or not a visa number is available depends on the type of green card petition filed and can vary depending on the classification of the employee.
• An employee in this stage of the process may concurrently apply for a temporary work permit while he/she awaits adjudication of the green card. Typically a work permit is issued within 90 days after the application is received. The work permit is issued in one year increments and can be renewed each year until the green card is approved.
• Current I-485 processing time is approximately 9 months.

An immigration attorney can assist companies and potential employees in determining the likelihood of success of a petition and the best method to employ in order to increase the chances of approval at all stages of the multi-step process.

For more info on green cards through employment click here.

For info on temporary work visas, work in the U.S. click here.