Employment-based immigration

Employment-based immigration is a crucial aspect of immigration law that governs the process by which foreign nationals can come to the United States to work. This process involves various visas, requirements, and regulations that both employers and employees must navigate to ensure compliance with the law. Understanding key terms and vocabulary in employment-based immigration is essential for practitioners in this field to effectively assist clients in achieving their immigration goals.

1. **Nonimmigrant Visas**: Nonimmigrant visas are temporary visas that allow foreign nationals to come to the United States for a specific purpose, such as work, study, or tourism. These visas typically have expiration dates and do not lead to permanent residency or citizenship. Some common nonimmigrant visas used for employment-based immigration include the H-1B visa for specialty occupations, the L-1 visa for intracompany transfers, and the O-1 visa for individuals with extraordinary ability.

2. **Immigrant Visas**: Immigrant visas, also known as green cards, grant foreign nationals the right to live and work permanently in the United States. There are various categories of immigrant visas, including those based on employment, family relationships, and humanitarian reasons. Employment-based immigrant visas are typically sponsored by employers and require the foreign national to meet specific eligibility criteria.

3. **Labor Certification**: Labor certification is a process through which an employer demonstrates to the Department of Labor that there are no qualified U.S. workers available to fill a specific job position. This process is required for certain employment-based immigrant visa categories, such as the EB-2 and EB-3 visas. Employers must advertise the job position and follow specific recruitment steps before filing the labor certification application.

4. **PERM**: PERM stands for Program Electronic Review Management and is the online system used by the Department of Labor to process labor certification applications. Employers must create a PERM account, submit the required documentation, and adhere to strict timelines when filing a labor certification application through the PERM system.

5. **I-9 Form**: The I-9 form is used by employers to verify the identity and employment authorization of their employees. All employers in the United States are required to have each employee complete an I-9 form at the time of hire. Failure to properly complete and retain I-9 forms can result in significant penalties for employers.

6. **Work Authorization**: Work authorization is the permission granted by U.S. Citizenship and Immigration Services (USCIS) that allows foreign nationals to work legally in the United States. Foreign nationals must have valid work authorization, such as an employment authorization document (EAD) or a valid visa, to work in the U.S. Failure to maintain valid work authorization can result in deportation.

7. **Portability**: Portability refers to the ability of certain foreign workers with approved employment-based immigrant visa petitions to change jobs or employers without jeopardizing their green card process. This provision allows foreign workers to seek better job opportunities while their green card applications are pending.

8. **Priority Date**: The priority date is the date on which an employment-based immigrant visa petition is filed with USCIS. Priority dates are used to determine when an immigrant visa is available to the foreign national. The Department of State publishes monthly visa bulletin updates that indicate the current priority dates for each visa category.

9. **Adjustment of Status**: Adjustment of status is the process through which foreign nationals who are already in the United States on a nonimmigrant visa can apply to become lawful permanent residents (green card holders). Foreign nationals typically apply for adjustment of status after their employer-sponsored immigrant visa petitions are approved.

10. **National Interest Waiver (NIW)**: The National Interest Waiver (NIW) is a provision that allows certain foreign nationals to self-petition for an employment-based immigrant visa without the need for a labor certification. To qualify for an NIW, foreign nationals must demonstrate that their work is in the national interest of the United States and that they have exceptional ability or advanced degrees.

11. **Dual Intent**: Dual intent is a concept that allows nonimmigrant visa holders to have both temporary and permanent immigration intentions simultaneously. Some nonimmigrant visas, such as the H-1B and L-1 visas, allow foreign nationals to maintain their nonimmigrant status while pursuing permanent residency through employment-based immigrant visas.

12. **Cap-Subject and Cap-Exempt**: Cap-subject visas are subject to annual numerical limits set by Congress, such as the H-1B visa cap. Once the annual cap is reached, USCIS stops accepting new petitions until the next fiscal year. Cap-exempt visas, on the other hand, are not subject to numerical limits and include visas for universities, nonprofit organizations, and certain research institutions.

13. **Prevailing Wage**: The prevailing wage is the average wage paid to similarly employed workers in a specific occupation in a particular geographic area. Employers sponsoring foreign workers for certain nonimmigrant and immigrant visas must pay them the prevailing wage to ensure that they are not being exploited or underpaid.

14. **Consular Processing**: Consular processing is the process through which foreign nationals apply for an immigrant visa at a U.S. consulate or embassy in their home country. After USCIS approves the immigrant visa petition, the foreign national must attend an interview at the consulate to receive the immigrant visa stamp in their passport.

15. **Immigration Status**: Immigration status refers to the specific category under which a foreign national is allowed to reside and work in the United States. Examples of immigration status include F-1 student, H-1B specialty occupation worker, and lawful permanent resident (green card holder). Maintaining valid immigration status is crucial to avoid deportation and other immigration consequences.

16. **Public Charge**: Public charge is a ground of inadmissibility that can prevent foreign nationals from obtaining an immigrant visa or adjusting their status to lawful permanent resident. Foreign nationals are considered a public charge if they are likely to become primarily dependent on government assistance for their living expenses.

17. **E-Verify**: E-Verify is an electronic employment eligibility verification system used by employers to confirm the employment authorization of their employees. Some employers are required by law to use E-Verify to ensure that their workforce is authorized to work in the United States.

18. **Dependent Visa**: Dependent visas are visas granted to the immediate family members of foreign workers who hold nonimmigrant or immigrant visas. Dependents, such as spouses and children, are allowed to accompany the primary visa holder to the United States and may be eligible to work or study while in the country.

19. **Employment Authorization Document (EAD)**: An Employment Authorization Document (EAD) is a card issued by USCIS that allows foreign nationals to work legally in the United States. Foreign nationals must have a valid EAD to work in the U.S. while their nonimmigrant or immigrant status is pending or to work in certain categories without employer sponsorship.

20. **Premium Processing**: Premium processing is an expedited processing service offered by USCIS for certain nonimmigrant and immigrant visa petitions. Employers can pay an additional fee to have USCIS adjudicate their petitions within 15 calendar days, providing faster processing times for urgent situations.

21. **Concurrent Filing**: Concurrent filing is the process through which foreign nationals submit multiple immigration applications at the same time. For example, an employer may file an immigrant visa petition and an adjustment of status application concurrently to expedite the green card process for the foreign worker.

22. **PERM Audit**: A PERM audit is a request by the Department of Labor for additional documentation or information related to a labor certification application filed by an employer. Employers must respond to PERM audits promptly and accurately to avoid delays or denials in the labor certification process.

23. **EB-5 Investor Visa**: The EB-5 investor visa is an employment-based immigrant visa that allows foreign nationals to obtain a green card by investing a certain amount of capital in a U.S. business that creates jobs for U.S. workers. The EB-5 program is designed to stimulate the U.S. economy through foreign investment.

24. **Worksite Compliance**: Worksite compliance refers to the employer's responsibility to ensure that foreign workers are authorized to work in the United States and that they comply with all immigration laws and regulations. Employers must maintain accurate records, verify employment eligibility, and cooperate with government audits to demonstrate worksite compliance.

25. **H-2B Visa**: The H-2B visa is a nonimmigrant visa for temporary non-agricultural workers who are needed to fill seasonal or peak-load positions in the United States. Employers must demonstrate that there are no qualified U.S. workers available and that hiring foreign workers will not adversely affect U.S. workers' wages and working conditions.

26. **PERM Recruitment Requirements**: PERM recruitment requirements are the mandatory steps that employers must take to advertise a job position before filing a labor certification application. These requirements include placing job ads in newspapers, posting the job on the company website, and conducting recruitment efforts to attract qualified U.S. workers.

27. **USCIS Processing Times**: USCIS processing times refer to the average time it takes for USCIS to adjudicate various immigration applications and petitions. Processing times can vary depending on the type of application, the USCIS service center processing the case, and external factors such as government backlogs or staffing shortages.

28. **TN Visa**: The TN visa is a nonimmigrant visa category available to Canadian and Mexican professionals who are eligible to work in certain occupations in the United States. The TN visa is based on the North American Free Trade Agreement (NAFTA) and allows professionals to work temporarily in the U.S. for up to three years.

29. **Form I-140**: Form I-140, Immigrant Petition for Alien Worker, is the form used by employers to petition for an employment-based immigrant visa on behalf of a foreign worker. The I-140 petition establishes the foreign worker's eligibility for the immigrant visa and is a critical step in the green card application process.

30. **Public Access File**: The Public Access File is a record-keeping requirement for employers who sponsor foreign workers on H-1B visas. The file must contain certain documents related to the H-1B visa petition, such as the Labor Condition Application (LCA), prevailing wage determination, and notices posted at the worksite.

31. **USCIS Request for Evidence (RFE)**: A USCIS Request for Evidence (RFE) is a formal request by USCIS for additional information or documentation to support an immigration application or petition. Applicants must respond to RFEs within the specified timeframe and provide the requested evidence to avoid delays or denials in their cases.

32. **Priority Worker**: Priority workers are foreign nationals who qualify for employment-based immigrant visas under the EB-1 visa category. Priority workers include individuals with extraordinary ability, outstanding professors and researchers, and multinational executives and managers. Priority workers are eligible for expedited processing of their immigrant visa petitions.

33. **Form I-9 Compliance**: Form I-9 compliance refers to the employer's obligation to properly complete and retain I-9 forms for all employees hired in the United States. Employers must verify the identity and employment authorization of each employee within three business days of hire and retain I-9 forms for a specified period.

34. **E-3 Visa**: The E-3 visa is a nonimmigrant visa category available to Australian professionals who are eligible to work in specialty occupations in the United States. The E-3 visa is similar to the H-1B visa but is specifically reserved for Australian citizens and has its own annual numerical cap.

35. **Labor Condition Application (LCA)**: The Labor Condition Application (LCA) is a form filed by employers with the Department of Labor when petitioning for H-1B visas for foreign workers. The LCA attests that the employer will pay the foreign worker the prevailing wage, provide working conditions comparable to U.S. workers, and not adversely affect U.S. workers in the same occupation.

36. **Form I-485**: Form I-485, Application to Register Permanent Residence or Adjust Status, is the form used by foreign nationals to apply for adjustment of status to lawful permanent resident (green card holder) while in the United States. The I-485 form is filed concurrently with the employer-sponsored immigrant visa petition.

37. **E-2 Investor Visa**: The E-2 investor visa is a nonimmigrant visa category that allows foreign nationals to invest a substantial amount of capital in a U.S. business and live in the United States to develop and direct the business operations. The E-2 visa is available to nationals of countries with bilateral investment treaties with the U.S.

38. **USCIS Premium Processing Service**: The USCIS Premium Processing Service allows petitioners to request expedited processing of certain nonimmigrant and immigrant visa petitions for an additional fee. USCIS guarantees adjudication within 15 calendar days for petitions filed under the Premium Processing Service, providing faster processing times for urgent cases.

39. **Form I-129**: Form I-129, Petition for a Nonimmigrant Worker, is the form used by employers to petition for various nonimmigrant visa categories, such as H-1B, L-1, and TN visas. The I-129 form outlines the terms and conditions of employment for the foreign worker and is submitted to USCIS for adjudication.

40. **USCIS Biometrics Appointment**: A USCIS Biometrics Appointment is a scheduled appointment for foreign nationals to provide biometric information, such as fingerprints and photographs, as part of the immigration application process. Biometrics appointments are required for certain nonimmigrant and immigrant visa applications to verify the applicant's identity and conduct background checks.

41. **Premium Processing Time Frame**: The Premium Processing Time Frame refers to the 15-calendar day period within which USCIS guarantees adjudication of petitions filed under the Premium Processing Service. Petitioners pay an additional fee for Premium Processing to expedite the processing of their petitions and receive a decision within the specified timeframe.

42. **USCIS Form I-751**: USCIS Form I-751, Petition to Remove Conditions on Residence, is the form used by conditional green card holders to apply to remove the conditions on their residency and obtain a 10-year green card. Form I-751 must be filed jointly by the conditional green card holder and their spouse within the 90-day window before the conditional green card expires.

43. **USCIS Form I-90**: USCIS Form I-90, Application to Replace Permanent Resident Card, is the form used by permanent residents to renew or replace their green cards. Form I-90 is also used to update the information on the green card, such as a change of name or address, and must be filed with USCIS within a specified timeframe.

44. **USCIS Form I-539**: USCIS Form I-539, Application to Extend/Change Nonimmigrant Status, is the form used by nonimmigrants to extend their stay in the United States or change to a different nonimmigrant status. Form I-539 is typically filed by nonimmigrants who wish to extend their stay beyond the expiration date of their current visa.

45. **USCIS Form I-131**: USCIS Form I-131, Application for Travel Document, is the form used by permanent residents and certain nonimmigrants to apply for a reentry permit, advance parole, or refugee travel document. Form I-131 allows individuals to travel outside the United States and return without jeopardizing their immigration status.

46. **USCIS Form I-129F**: USCIS Form I-129F, Petition for Alien Fiancé(e), is the form used by U.S. citizens to petition for their foreign fiancé(e) to enter the United States on a K-1 visa. The K-1 visa allows the foreign fiancé(e) to travel to the U.S. to marry the U.S. citizen petitioner within 90 days of arrival.

47. **USCIS Form I-485**: USCIS Form I-485, Application to Register Permanent Residence or Adjust Status, is the form used by foreign nationals to apply for adjustment of status to lawful permanent resident (green card holder) while in the United States. Form I-485 is typically filed concurrently with the employer-sponsored immigrant visa petition.

48. **USCIS Form I-130**: USCIS Form I-130, Petition for Alien Relative, is the form used by U.S. citizens and lawful permanent residents to petition for certain family members to immigrate to the United States. Form I-130 establishes the familial relationship between the petitioner and the beneficiary and is a critical step in the family-based immigration process.

49. **USCIS Form I-864**: USCIS Form I-864, Affidavit of Support Under Section 213A of the INA, is the form used by sponsors to demonstrate their ability to financially support the intending immigrant and prevent them from becoming a public charge. Form I-864 is required for most family-based immigrant visa applications and some employment-based immigrant visa applications.

50. **USCIS Form I-765**: USCIS Form I-765, Application for Employment Authorization, is the form used by foreign nationals to apply for an Employment Authorization Document (EAD) to work legally in the United States. Form I-765 is typically filed concurrently with other immigration applications, such as adjustment of status or asylum applications.

These key terms and vocabulary are essential for understanding the complex landscape of employment-based immigration in the United States. Practitioners in immigration law must be familiar with these terms to effectively assist clients in navigating the various visa categories, requirements, and processes involved in employment-based immigration. By mastering these concepts, practitioners can provide knowledgeable and competent representation to foreign nationals seeking to work and live in the United States.