Employee-based Immigration


Many foreign nationals are able to live permanently and become lawful permanent residents in the United States (U.S.) through employment. One important aspect of the immigration process will be whether the foreign national is considered a temporary worker or a permanent worker.

Employment-based immigration for permanent workers in Texas:

As the U.S. Department of State notes, all categories of employment-based immigrant visas are issued in the chronological order in which petitions are filed until the annual numerical limit for the category is reached, and a petition’s filing date becomes the applicant’s priority date—the date a labor certification application is received by the Department of Labor (DOL).

Permanent worker visas in the U.S. are divided into five (5) preference categories:

  • First Preference (EB-1): Persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers. Persons with extraordinary abilities are able to file their own petitions (Form I-140) for employee-based visas.
  • Second Preference (EB-2): Persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.
  • Third Preference (EB-3): Professionals (meaning their jobs require at least a U.S. bachelor’s degree or a foreign equivalent and the person is a member of the profession); skilled workers (meaning their jobs require a minimum of two [2] years training or work experience); unskilled workers (meaning they will perform unskilled labor requiring less than two [2] years training or experience); etc.
  • Fourth Preference (EB-4): “Special immigrants,” including certain religious workers, employees of U.S. foreign service posts, retired employees of international organizations, alien minors who are wards of courts in the U.S., etc.
  • Fifth Preference (EB-5): Business investors who invest $1 million or $500,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers.

EB-2 and EB-3 visas both require labor certification, although an exception exists for EB-2 applicants who obtain national waivers. Labor certification involves a foreign national’s employer essentially becoming the persons sponsor.

Employees can be required to obtain an approved labor certification from the DOL before the employer can submit an immigration petition to the U.S. Citizenship and Immigration Services (USCIS). DOL labor certification verifies that there are insufficiently available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage, and hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

On some occasions, spouses and children may accompany employment-based immigrants.

Employment-based immigration for temporary workers in Texas:

Temporary (Nonimmigrant) Worker Classifications include:

  • Commonwealth of the Northern Mariana Islands (CNMI): Only Transitional Worker (CW-1)
  • E-1 Treaty Traders / E-2 Treaty Investors: They are intended to promote economic exchange between the U.S. and the corresponding countries.
  • CNMI-Only Investor (E-2)
  • E-3 Certain Specialty Occupation Professionals from Australia
  • H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models
  • H-1C Registered Nurse Working in a Health Professional Shortage Area as Determined by the Department of Labor
  • H-2A Temporary Agricultural Workers
  • H-2B Temporary Non-Agricultural Workers
  • H-3 Nonimmigrant Trainee or Special Education Exchange Visitor
  • I Representatives of Foreign Media
  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
  • O-1 Visa: Individuals with Extraordinary Ability or Achievement
  • O-2 Visa: Persons accompanying solely to assist an O-1 nonimmigrant
  • P-1A Internationally Recognized Athlete
  • P-1B A Member of an Internationally Recognized Entertainment Group
  • P-2 Individual Performer or Part of a Group Entering to Perform Under a Reciprocal Exchange Program
  • P-3 Artist or Entertainer Coming to Be Part of a Culturally Unique Program
  • Q-1 Cultural Exchange
  • R-1 Temporary Nonimmigrant Religious Workers
  • TN NAFTA Professionals

Which are the steps for obtaining an immigrant visa?

  • The applicant’s prospective employer or agent must first obtain a labor certification approval from the DOL;
    • If necessary, the employer will file an Immigrant Petition for Alien Worker, Form I-140, with the USCIS for the appropriate employment-based preference category.
  • Once USCIS approves the petition, it is sent to the National Visa Center (NVC).
  • The NVC will assign a case number for the petition.
  • After the applicable fees are paid, the NVC will ask the applicant to submit the necessary documents for the immigrant visa, including application forms, civil documents, and more.
  • Once the NVC determines the file is complete with all the required documents, they schedule the applicant’s interview appointment.
  • NVC then sends the file, containing the applicant’s petition and the documents listed above, to the U.S. Embassy or Consulate where the applicant will be interviewed for a visa.
  • A consular officer will interview the applicant, and the consular officer will determine whether the applicant is eligible to receive an immigrant visa in accordance with U.S. immigration law.
  • Ink-free, digital fingerprint scans will be taken on the day of the interview.

Which documents are required?

  • Passport valid for six (6) months after the expected date of entry into the U.S., unless the U.S. Embassy / Consulate in your country specifically requests a longer validity.
  • Form DS-260, Application for an immigrant visa and alien registration.
  • Two (2) 2×2 photos.
  • Civil documents for the applicant: such as birth and marriage certificates, etc.
  • Financial support: At their immigrant visa interview, the person must demonstrate to the consular officer that they are not likely to become a public charge in the U.S.
  • Completed Medical Exam Forms: These are provided by the panel physician after the person has completed her/his medical exam and vaccinations.

Which conditions and activities may make an applicant ineligible for a visa?

Examples of these ineligibilities include: drug trafficking; overstaying a previous visa; and submitting fraudulent documents.

Octavio Rivera Bujosa

The lawyer Octavio M. Rivera Bujosa is the first to point out that the keys to his professional success stem from his origins and the extraordinary litigating attorneys that life has given him the opportunity to meet and learn from. Octavio was born in Zaragoza, Spain, and hails from the mountains of Utuado, Puerto Rico, where he grew up listening to anecdotes about the great criminal lawyer of that time: Don Tomás Torres Cortés. Octavio is an American, Spanish, and Puerto Rican citizen at heart. [Read More]
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