Employment-based immigration is a weighty topic. Even those experienced in United States immigration law must keep up with regular updates. To help clarify some of the aspects of the work visa process, here are some answers to frequently asked questions on the subject.
Q: How many employment-based visas does the U.S. give out each year?
A: U.S immigration law currently allows for about 140,000 employment-based immigrant visas for qualified applicants per fiscal year, which runs October 1st through September 30th).
Q: What are the first steps towards obtaining an immigrant visa?
A: As an applicant for a potential employment-based visa, you usually first need your potential employer or your agent to obtain a labor certification approval from the U.S. Department of Labor – though some applicants do not need a labor certification. Once that’s been received, your potential employer will file an Immigrant Petition for Alien Worker (Form I-140), under a specific employment-based preference category, with the U.S. Citizenship and Immigration Services (USCIS).
Q: Can I file my Immigrant Petition for Alien Worker without a potential employer or agent?
A: If you will be petitioning under the Employment First Preference (EB-1 visa), then as a Priority Worker you can file Form I-140 on your own. If you intend to file under any other employment-based performance categories, you will still need an employer to file your Immigrant Petition for Alien Worker with USCIS.
Q: How long until Form I-140 is approved by USCIS?
A: Until the annual limit is hit in that category, each category of employment-based immigrant visas processes petitions in the chronological order in which they were filed. Unfortunately, some categories have many more applicants than others, so the wait could be several years until a Priority Date is hit in those categories (i.e. “Unskilled Workers” applying for EB-3 visa.) The length of time for the entire process varies on a case-by-case basis, so no two individual cases will take the same length of time to process.
Q: What are the different types of employment-based visas?
A: In order to qualify for a legal employment-based visa, applicants must fit a corresponding employment preference category. There are five different types of employment-based “preference” categories under which the U.S. government accepts visa applications:
- Priority Workers (EB-1 Visa)
- Professionals Holding Advanced Degrees and Persons of Exceptional Ability (EB-2 Visa)
- Skilled Workers, Professionals, and Unskilled Workers (Other Workers) (EB-3 Visa)
- Certain Special Immigrants (EB-4 Visa)
- Immigrant Investors (EB-5 Visa)
Q: Can members of my immediate family also apply for immigrant visas?
A: Once your Form I-140 is approved, your spouse and any unmarried children younger than 21 may apply for immigrant visas along with you. Same-sex spouses, and their children, are now eligible for the same immigrant visa benefits as opposite-sex spouses under U.S. law. Any family members who wish to seek an immigrant visa will be subjected to the same process as you: filling out required forms, paying appropriate fees, medical exams — everything.
Q: What are the next steps after submitting Form I-140?
A: First, USCIS must approve your Form I-140 petition. Once that happens, your Form I-140 is then sent to the National Visa Center (NVC) where it will be assigned a case number and a Priority Date. When that date begins to approach the most recent Cut-off Date, then the NVC will give the applicant notice to complete the Choice of Address and Agent (Form DS-261) and request that you pay the associated fees with the petition. (For current information on Cut-off Dates, The Department of State posts updates on the Cut-off Dates each month.) The NVC will now hold your visa petition until such time that an interview can be scheduled for you at a U.S. Embassy or Consulate with a consular officer. If you have an immigration attorney, the NVC will communicate directly with them on these matters.
Q: How should I prepare for my visa interview?
A: The NVC will schedule your interview appointment when your file is officially complete with the required documents. Your file will be then sent to the U.S. Embassy or Consulate where your visa interview will take place. Prior to your interview, schedule and complete a medical examination and get any required vaccinations. Every visa applicant, regardless of age, must undergo a medical examination with an authorized panel physician. Finally, a consular officer will interview you and determine your eligibility for an immigrant visa under U.S. immigration law.
Q: What would make someone ineligible for an employment-based visa?
A: Some actions and conditions could make an applicant ineligible for an employment-based visa, including:
- Drug trafficking
- Overstaying a previous visa
- Submitting fraudulent documents.
The consular officer notifies an applicant if he or she is ineligible for a visa and will advise on whether or not there is a waiver of the ineligibility available and the process for that. Keep in mind that any attempt to obtain a visa by willful misrepresentation of facts or fraud could result in a permanent ineligibility to receive U.S. visas or even a revoking of the ability enter the United States legally.
