Employment Based Immigration

Application for Immigrant Visa: Employment-Based Immigration

No matter what your profession or occupation [assuming it is legal], you may be able to apply for an Immigrant Visa when you have an offer of employment in the US. Employment-Based Visas are determined in accordance with the specified Employment-Based Preferences.

Background - The main issue here is the problem that might be caused for US workers, as admitting an immigrant worker could presumably result in taking a job from an American citizen. This is an oversimplification, but it provides the background for understanding the strict requirements that must be met to obtain a Labor Certification, which will be utilized in examining the need for a particular immigrant worker. In some professions or occupations, there are few American workers that might potentially be displaced. In other categories, this is a definite concern.

Labor Certification - This is the basic document required for almost every Employment-Based Immigrant Visa. An employer who wants to Petition for an Immigrant Visa on behalf of an employee must file this document. It must be obtained from the US Labor Department, rather than the INS. It demonstrates to the INS that the US Labor Department believes or agrees with the employer that there is a labor shortage, or an unavailability of US workers, for the job addressed in the Petition.

The Labor Department's issuance of a Labor Certification may take anywhere from several months to several years. The issues are varied and depend largely on the area from which the employer is applying, as the job field is not a constant throughout the US.

The Petition for an Employment-Based Immigrant Visa is Form I-140, "Immigrant Petition for Alien Worker." It is important to know what is required for your Petition, although undoubtedly in this area the employer will be undertaking the legal research needed to meet the requirements of the particular occupation or profession. The rules are a bit more complicated, but the employer's attorney will usually assist.

As the beneficiary of a Form I-140 Petition, an immigrant should be sure that he/she knows the position of the attorney hired by the employer. The employer's attorney will almost always represent the employer, and not always the immigrant. While the interests of both sides are usually aligned, there are times that the two interests may be at odds, and it will be important for the immigrant to note that the attorney may not be of as much help as hoped or expected. As an example, the employer who is paying the bill may instruct the attorney to spend very little time talking to the immigrant, because the bill for the legal services may increase.

This can result in tension because the immigrant, understandably, has a number of important questions, especially in understanding the American Legal System and the procedures. Because each call to the attorney costs money, the attorney may refuse to cooperate in an explanatory role to the immigrant, if that attorney is so instructed by the client [the employer.] While there is little for the immigrant to do in this situation, other than retaining their own attorney at their expense, they may feel at odds with the employer once the Petition has been filed.

Because the Employment-Based Immigrant Visas are based on specified Employment-Based Preferences in the US Code, the date of your Petition is important in determining if you have a preference over another immigrant Visa Petition. The date of your Petition for determining priority is either:

  • The date the Labor Department serving your area receives the Labor Certification Application; or
  • The date on which the INS receives your Petition, if there is no Labor Certification required for the occupation or profession that is the subject of the Petition in your case.

Interestingly, the employer is required to provide evidence of its ability to pay the salary of the immigrant who is the subject of the Petition. Since the employer will usually have an attorney who is familiar with all of the strict employer requirements, a comprehensive discussion of these requirements is not included here. However, we will touch on a few of the highlights, so that an immigrant can understand some of the issues involved. It is advisable to retain your own immigration attorney, if a more thorough analysis of these requirements is needed.

Job Change - The issue that will catch the attention of the INS here is whether the employment offer is serious. This does not mean that an immigrant has to be employed at the job forever, but there must be some evidence that the job offer was significant and real, and not just a "sham" transaction to obtain employment for the immigrant. For this reason, a job change shortly after the application is filed or granted may cause the INS some concern. This does not mean that a firing, layoff or change by you to a better job will be problematic in every instance. It does mean that if it occurs, the immigrant better have proof that the original job offer from the employer was real and was intended to be a genuine offer. There are various ways of proving this, and no single way is the best way.

A person contemplating such a move would be well advised to be sure to have proof of the genuineness of the job offer, prior to leaving the job, changing jobs, or any other event that affects employment.

There are several categories of Employment-Based Immigrant Visa Preferences:

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