KemLaw

Every fiscal year in the U.S. (October 1st – September 30th), approximately 140,000 employment-based immigrant visas are made available to qualified job applicants under U.S. immigration law.

If you are a Connecticut employer considering an immigrant candidate for a job, here are some of the key things you need to know:

• Foreign workers must obtain permission to legally work in the United States.
• Employers are not required to sponsor employees/applicants for visas.
• If an employer seeks to sponsor employees/applicants for visas, there are a variety of employment categories that may be available to foreign workers. Each category has special requirements, conditions and authorized periods of stay.  There are also special rules restricting overall length of continuous stay in the United States and switching categories.

One critical distinction that must be made is between temporary (nonimmigrant) and permanent (immigrant) workers.

• Nonimmigrant workers include temporary workers seeking entry into the United States temporarily for a specific, business-related Nonimmigrants enter the United States for a temporary period and are restricted to the activity or work for which they were authorized to enter the United States.
• Common Nonimmigrant Visas Include:
  • B Visa: Available to foreign visitors for business or pleasure who maintain a permanent foreign residence and have the means to avoid taking a source of income in the United States during such visit.
  • E Visa: Traders (E-1) and Investors (E-2). These visas are granted to individuals based on reciprocity agreements between the United States and foreign countries.  E-1 visas are granted to individuals coming to the United States to engage in trade between the United States and the foreign state from which they are from.  E-2 visas are granted to persons coming to the United States to develop and direct the operations of entities in which such persons have invested substantial amounts of capital.
  • H-1B Visas: Available to specialty occupation workers, who are in an occupation that requires application of highly specialized knowledge and attainment of a bachelors degree or higher in the specialty occupation (or equivalent experience on a three-for-one basis) in a position in which the employer requires such degree.
  • L Visa: Available to intracompany transferees. L-1 visas are available for executives, managers or persons with specialized knowledge (employed for one year or more in the foreign company) who are coming to the United States to render services to the same company or affiliate/subsidiary thereof.

People who want to become permanent immigrant workers are first classified into categories, based on a preference system, before being entered into a lottery for admission. The preference categories for permanent worker visas are:

• First Preference EB-1 (no labor certification required): Reserved for persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers.
• Second Preference EB-2 (must generally have a labor certification approved by the Department of Labor: Reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business.
• Third Preference EB-3 (labor certification required): Reserved for professionals, skilled workers, and other workers.
• Fourth Preference EB-4 (no labor certification required): Reserved for “special immigrants,” which includes certain religious workers, employees of U.S. foreign service posts, retired employees of international organizations, alien minors who are wards of courts in the United States, and other classes of aliens.
• Fifth Preference EB-5 (no labor certification required): Reserved for business investors who invest $1 million or $500,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least ten full-time U.S. workers.

Remember, all categories of employment-based immigrant visas are issued in the chronological order in which the petitions (i.e., Immigrant Petition for Alien Worker) were filed until the annual numerical limit for the category is reached.

If you’re an employer and have questions about current immigration laws as they pertain to employment, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut.  We do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region.  What’s more, each of our attorneys has over 20 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy.  Please contact us if we can help you.

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