In an employment-based immigrant visa petition, an employer must demonstrate to USCIS that the alien beneficiary is a foreign national qualified for the immigrant classification sought. If the immigrant petition is based on an underlying certified labor certification application, the employer must demonstrate that the alien
beneficiary is qualified for the position certified by the Department of Labor ("DOL"). However, there are several immigrant classifications that do not require the employer to first obtain labor certification.

 

Additionally, in certain classifications, the alien beneficiary is able to self-petition for the classification sought.

Job Offers: In most cases, the beneficiary of an I-140 petition must be the recipient of a job offer from an employer in the United States. As evidence of the job offer, most petitioners who file EB-2 and EB-3 immigrant I-140 petitions must first obtain an individual labor certification from the DOL. In other cases where the alien is
eligible for blanket labor certification, labor certification applications are submitted to USCIS with the I-140 petition.

 

In relatively few cases, an individual labor certification from DOL and a job offer are not required.

Labor Certifications: A significant percentage of employment-based immigrant visa petitions are based on labor certification applications approved by the DOL. In adjudicating such petitions, the DOL does not generally review the alien beneficiary’s qualifications for the position. Rather, this authority and responsibility rests with USCIS.

 

Thus, adjudicators assess these immigrant petitions to ensure that the position offered is the same or similar position that was certified by the DOL and that the alien beneficiary meets the qualifications for the position.

The H-1B Visa: This is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability. A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations. The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status. H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered.

 

The employer must then file the certified application with a petition plus accompanying fee of $130. Based on the USCIS petition approval, the alien may apply for the H-1B visa, admission, or a change of nonimmigrant
status.

 

These are detailed application processes with which our firm can assist. Contact us if your business needs assistance with an employment-based immigration
problem.