American employers who have difficulty or are unable to find American workers to fill positions have an option under U.S. immigration law to hire foreign workers to fill the positions. However, immigration requirements are complicated, so it is not that easy to get an employment-based visa for a foreign worker. Rather, to successfully obtain a work visa for a foreign worker, both the employer and foreign worker must comply with strict rules and regulations that govern the issuance of these visas.
Employment visas are grouped into two broad categories, and under each of these two broad categories, there are many visa types. The two broad categories are temporary and permanent employment visa categories.
A temporary work visa is one that allows the holder to come and work in the United States for a limited period. The expectation under the law is once that validity period expires, the visa holder must return to their native country unless the visa is extended or they change status to a different visa category that authorizes them to remain and work in the United States beyond the initial validity period.
To obtain this temporary work visa, both the employer and foreign worker must comply with and satisfy the requirements that apply to the visa applied for. The range of temporary work visas available is broad, but the following are the most common:
A permanent work visa is one that allows the holder to come, live and work permanently in the United States. In fact, the foreign worker gets a green card based on the approved petition filed by their prospective employer.
To apply, however, both the employer and prospective foreign worker must satisfy rigorous requirements, which include the employer obtaining what is known as labor certification from the U.S. Department of Labor (DOL).
Obtaining the labor certification requires the employer to take legally required steps to demonstrate (to the satisfaction of DOL) that the employer cannot find qualified American workers to fill the open position.
Although labor certification is required to obtain a permanent work visa (green card), it is possible to have this requirement waived if the applicant can demonstrate that it is in the national interest of the United States to waive the labor certification requirement.
There is no definition of what is in the national interest, but the USCIS considers 3 factors in determining whether the national interest requirement is met, and these are:
If you are in the Colorado Springs area and need an immigration attorney, contact us today and schedule a consultation. The team of Joseph & Hall is ready to help.
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