Understanding An Employment Visa

By: Robert Thomson Click author's name for more of his/her articles

Thanks to the Immigration and Nationality Act, a minimum of 140,000 employment visas are allotted for the United States each year. These employment visas are divided into five categories, based on the particular skills and training of the individual needing a visa. From the start, it must be understood that other requirements, such as a Department of Labor (DOL) labor certification or a petition filed with the Department of Homeland Security (USCIS), may be needed before a visa is approved.
The Five Categories of Employment Visas

As a business owner wanting to hire a foreign national, or an individual wanting to enter into the U.S. for employment, knowing which category your situation fits is essential:

E1 Employment Visa

Also known as Priority Workers, individuals with an E1 Employment Visa must have an approved Immigrant Petition for Foreign Worker. The form, Form I-140, can be filed with the USCIS, either by the individual or their prospective employer, depending on the reason for requested entry. All priority workers must become employed in the U.S. in the same capacity that made them eligible for E1 status, but won't need a certificate of labor. Three sub-groups fall under this category:

1. Individuals with extraordinary ability (science, education, business, art or athletics). These foreign nationals will have to have papers proving their abilities and the recognition (nationally or internationally) of their expertise. They can file their own I-140 Form and don't need a potential employer.

2. Internationally recognized professors and researchers (3 years of experience). To be approved, the individual must have a job offer from a perspective employer, who is required to file Form I-140 for the foreign national. If their U.S. employer is private, that employer will need have at least three other full time employees in a research capacity, as well as documented academic accomplishments, to qualify.

3. Previously employed by overseas affiliate - If the foreign national has been previously employed in an executive or managerial capacity at a branch, parent, subsidiary or overseas affiliate of the U.S. employer, they may be eligible for the E1 Employment Visa. The U.S. company must be at least a year old, and will need to provide a job offer as well as file Form I-140.

E2 Employment Visa

The E2 Employment Visa is much different than E1 and requires more paperwork. Anyone applying for E2 status will need a DOL approved labor certificate or to qualify for the Labor Market Information Pilot Program (Program is set to outline up to 10 specific areas with labor shortages). In addition, they will need a job offer from a prospective U.S. employer and Form I-140 must be filed by the employer. The only exception to this rule is if the foreign national can prove that the exemption is in the national interest. If this is the case, they can file Form I-140 themselves along with proof of the national interest. Three subgroups fit in the E2 category:

1. Professionals with advanced degrees (beyond a Bachelor's)

2. Professionals with a Bachelor's degree and five years of experience or more in that profession

3. Individuals with exceptional abilities (arts, science, business). "Exceptional" means that their expertise is well above and beyond the average in their field.

E3 Employment Visa

Qualifying for an E3 Employment Visa requires the same documents as an E2 - an approved, employer-filed I-140 petition and a DOL labor certification or qualification for the Labor Market Information Pilot Program. The three subgroups eligible for an E3 Employment Visa are:

1. Skilled workers - These individuals are able to find placement in a job that requires two years or more of training or experience.

2. Professionals - Individuals, with a Bachelor's, in a profession that requires at least a university Bachelor's degree.

3. Other workers - Individuals able to fill positions that require less than two years of training or experience.

E4 Employment Visa

Those that qualify for the E4 Employment Visas are also called Specialty Workers. Rather than an I-140, specialty workers must have an approved Petition for Special Immigrant, or I-360 form. The only exception to this is if the individual is an overseas employee of the U.S. Government, who will need to use Form DS-1884. There are several types of special immigrants, many of which have an annual limitation on the amount of visas allowed. Here are just a few:

1. U.S. broadcaster, employed by, or a grantee of, the International Broadcasting Bureau of the Broadcasting Board of Governors

2. Minister of Religion

3. Dependent of the Juvenile Court

4. Foreign national who served or enlisted in the U.S. Armed Forces while outside the U.S.

5. Certain Religious Workers

E5 Employment Visa

The E5 Employment Visa is specifically for foreign national entrepreneurs. These individuals will need to file an Immigrant Petition by Alien Entrepreneur, or Form I-536, with the USCIS. They will need to be able to invest between $500,000 and $1 million U.S. in a commercial enterprise, creating at least ten full-time job positions for the chosen geographical area.

Every immigrant applying for an employment visa, no matter what the status (E1 - E5), must have an approved petition from the USCIS. In addition, all necessary proof for the specific employment status will need to be filed at the same time as the petition.

Because there is a finite amount of employment visas available per year, it should be noted that even those who qualify might not be accepted right away. Depending on how many applicants are received for each category, it could conceivably take years for an application to be approved. The U.S. Department of State urges those applying for employment visas not to pack, solidify travel arrangements, dispose of their property or give up their current jobs until they've received their visa.

All in all, the best way to ensure the approval of an Employment Visa is to make sure you're applying for the correct status, have the proper documentation, have the processing fee available for when it's requested and be in good health. Otherwise, be patient. The day will come when you'll hear, "Welcome to the United States!"

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