Immigration Series Part V – Immigration and Employment in 2022

We will explore two major avenues of employment immigration related to the two earlier examples – the German father and the family of Martha. We will not examine all the avenues of immigration available to them and their families – only the employment options which would be available to them in today’s world.  In both scenarios, additional, personal information about each potential immigrant would need to be obtained before determining his or her qualifications for any visa outlined below.

Note: any visa is not guaranteed. Meeting the qualifications does not mean that an individual would be guaranteed the granting of a visa.

Credit for certain information below must be extended to Lindsay Goldford Gray, founder, and CEO of VECINA, a nonprofit organization, and Adjunct Professor of Immigration Law at Washington University in Saint Louis.

Additional qualification details are found in the Essentials Immigration Law, 5th Edition by Author Richard A. Boswell and published by the American Immigration Lawyers Association.

The German Father – Serilda’s father Karl

Based upon his description it is reasonable to determine that that he might be qualified for one of these visas. Additional information would need to be gathered.

The Preference Categories: EB categories

EB-1A – Extraordinary Ability – Sustained National of International Acclaim

• No petitioning employer is required. He could self-petition.
• Must have sustained national or international acclaim
• Evidence of such acclaim includes national or internationally recognized prizes and awards, select memberships, evidence of original scientific, scholastic, artistic, athletic, or business-related significant contributions, authorship of scholarly articles, and other similar options.

EB-1B – Outstanding Researcher or Professor

• He must demonstrate international recognition for outstanding achievement in a particular academic field.
• He must have at least three years of experience teaching or researching in a particular academic area.
• He must be applying for the EB-1B green card to pursue a tenure-track position or comparable research job at a university or other institute of higher education.
• Evidence of membership in organizations that requirement members to demonstrate outstanding achievement, evidence of judging the work of others in the same of allied academic field, evidence of authorship or scholarly works in the field international circulation, evidence of original scholarly work, and other similar options.

EB-2: Advance Degree or Exceptional Ability – Exceptional ability in the arts, sciences, or business

• Evidence that he commanded a salary or other remunerations for services that demonstrated his exceptional ability
• Membership in professional associations
• Recognition for achievements and contributions to the industry of peers, government entities, profession, or business organizations
• Other company evidence of eligibility is also acceptable, as well as other documentation such as academic records, etc.

The Labor Certification Process: AKA PERM

• The University could file for this by 1) filing with the Department of Labor for  Prevailing Wage Determination, 2) placing newspaper ads, and State Workforce Agency postings 3) waiting 30 days 4) filing the labor certification testing requirement such as it is a bona-fide full-time position which meets the prevailing wage requirements, and is open to U.S workers, that they have the finances to support  the position and have found no suitable candidate, and that the employment would not adversely affect the wages and working conditions of U.S. workers.

O-1A Visa – Individuals with Extraordinary Ability or Achievement in the sciences, education, business, or athletics

• He must prove that he has a level of expertise indicating that he is one of the small percentages who have arisen to the very top of his field.
• A U.S. employer, U.S. agent, or foreign employer through a U.S. agent should file Form I-129, Petition for Nonimmigrant Worker on the beneficiary’s behalf, along with the required evidence according to the form instructions. The employer or agent cannot file the petition more than one year before they need your services. To avoid delays, the employer or agent should file the Form I-129 at least 45 days before the date of employment.

H1-B Specialty Occupation Visa

• The job must meet at least one of four criteria: entry requirement is usually bachelor’s or higher degree, complex degree requirement is unique that can only be performed by someone with degree, employer normally requires that degree, and nature of duties is so specialized or complex, that normally a bachelor’s or high degree is required.
• No need to establish that they have a long-term foreign residency.
• Can pursue permanent residency under another category simultaneously.
• Most positions are subject to the cap which means he would enter the lottery.

Most visa processes require documentation, truthfulness, accuracy, and time. The forms may be different, the recipients of forms different, but the process is simple, apply according to the requirements and wait.

The Colombian Immigrants – Martha’s family members

If Martha, her brothers, and sisters were in Colombia now and wanted to come to the United States for employment, it appears that aside from the normal USCIDS visa process with quotas, and long waits, only two visa categories might apply to them

H-2B One-time, Seasonal, Peakload, or Intermittent workers

• Employers can bring foreign nationals into the United States to fill temporary non-agricultural jobs
• Employer must file form I-29 which is a petition for a nonimmigrant worker on behalf of the worker.
• They could move to seasonal agricultural work or attempt to qualify for temporary – non-agricultural jobs.
• Restricted to a quota.

H-3 Visa – trainee

• Issued to individuals who want training that is not available in Colombia, etc. which could lead to employer sponsorship and will help the trainee obtain a position outside the United States.
• May be training in any field, such as agriculture, commerce, communications, finance, government, transportation, or the professions with certain filed limitations covered by J Visas.
• Sometimes applicants are management trainees form a multinational corporation.
• Persons receiving this visa are limited to two years and may not change or extend their stay or be readmitted under an H or L visa unless they have been outside the United States for six months.

Certain themes permeate immigration for employment. Employers which recruit and/or sponsor immigrant applicants are required to pay at least the prevailing wage for the employment category. Further, they must affirm that there are either none or insufficient U.S. workers for the job which include PERM positions, H-1B positions (temporary specialty occupation visas, and H-2Bs (seasonal, peak load, or intermittent occupations visas).