Employment Based Immigration

This status allows an immigrant to work in the US for a US employer for up to six years, and is approved by the INS in three-year increments.

Generally, there are several requirements to obtain this Visa:

• Four-year college degree in the field [or equivalent], obtained in US or abroad;
• Job must be a classified as a "Special Category" by the INS;
• Employer must file the Petition;
• Labor Certification must be obtained by the employer; and
• Employer must pay you the same wage as other workers in company in similar positions.

It is interesting to note that you can be the beneficiary of a Petition filed by your employer even if you have been in the US illegally. There is a requirement that you must leave the US in order to re-enter under the H-1B Petition.

In this area the focus is on the job offered by the employer. It must be a job that requires a four-year college degree [or equivalent.] This is loosely explained to be a "professional job." The key is not on whether you have a degree, but on whether the employer requires a degree for the job.

It is also a critical element that the employer has made a job offer to the immigrant. Without a job offer, no H-1B Petition can be filed.

The Labor Certification requires the employer to state that the job is being offered to the immigrant at either the prevailing rate for other workers in similar jobs, or at a higher rate. The employer must file notice of the H-1B Petition for the immigrant in two obvious locations in the company. If there is a union, the union representative must be notified. One can imagine that there would likely be some objection to the employer, in effect, sponsoring an immigrant when there are a number of US citizens that may have applied for the job.

Assuming that the hurdle of employees in the company objecting to the employer's filing of an H-1B Petition is not a problem for the employer, the employer must then prove to the Labor Department that a prevailing wage is being offered to the immigrant for the job. This information can be obtained by a lawyer representing either the employer or the immigrant, or from the Labor Department. This information should be available to any requests for it. It is usually posted, and the posting is then filed with the Application, along with proof of the immigrant's college degree, education, experience, and salary information.

This information must be accepted by the Labor Department before the INS will accept the H-1B Petition.

This sets forth a general discussion of the law. Periodically, Congress changes the laws in this area. For example, the laws were recently changed slightly to make a higher burden upon the employer with stricter penalties.

In response to political pressure in the US, there is now a requirement that the employer certify that the filing of an H-1B Petition will not displace any US citizen, or that they would not have hired or fired a US citizen to hire the immigrant. Finally, the employer must certify that there is no US worker who is more qualified than the immigrant.

Clearly, this area is subject to change depending upon the feelings between US workers and immigrants. While predictions may be unreliable in this area, one can conclude that in many instances, if there is a heavy union base, any potential immigrant can expect a substantial protest from the workers and the union to any H-1B filing, even if it is permissible under the law.

Employment Based Immigration

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Sections Available in Immigration

Family Based Immigration Employment Based Immigration Non-Immigrant Visas