Employment-Based Immigration to the United States: A Fact Sheet

March 11, 2009

U.S. law provides employers with several limited ways to bring foreign workers into the U.S. on a temporary or permanent basis. Employment-based immigration visa categories generally have limited and static numerical caps. In addition, before petitioning for a foreign worker, an employer is often required to obtain certification from the Department of Labor (DOL) that there are no U.S. workers available, willing, and qualified to fill the position at a wage that is equal to or greater than the prevailing wage generally paid for that occupation in the geographic area where the position is located. The purpose of this restriction is to demonstrate that the admission and hiring of foreign workers will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.

Temporary Employment Visas

Temporary employment visas allow employers to hire foreign nationals to work in a specific job for a limited time period. Depending on the visa classification and, in some cases, the nationality of the intended employee, the employer may be required to file, as a first step, a petition for a nonimmigrant worker with U.S. Citizenship and Immigration Services (USCIS). If approved, a State Department consular officer then determines the foreign worker’s eligibility for a nonimmigrant visa. Once the visa has been issued, the worker may travel to the United States to assume employment with the petitioning employer. Upon arrival in the U.S., a Customs and Border Protection (CBP) officer will inspect the worker to confirm eligibility for admission and to determine the specific length of stay. Upon expiration of the period of stay (assuming it has not been extended by USCIS), the worker must depart the United States.

Permanent Employment Visas

A permanent employment visa (commonly referred to as a “green card”) allows a foreign national to work and live lawfully and permanently in the United States. Lawful permanent residents are subject to fewer restrictions than temporary workers (nonimmigrants), and generally may apply for U.S. citizenship after five years. In most cases, the individual’s employer must file a petition with USCIS. If the individual is already in the U.S. on a temporary visa, he or she may apply for “adjustment of status” to permanent residence after USCIS approves the employer’s petition. If the individual is outside the U.S., or is in the U.S. but chooses to have the immigrant visa application processed abroad, then the immigrant visa is processed by a U.S. consular officer.

Because of numerical and per-country limits (detailed below), some individuals must wait a significant period of time to apply for adjustment of status or an immigrant visa even after the petition is approved by USCIS. The Department of State issues a monthly visa bulletin, summarizing the availability of visa numbers for each preference category on a per-country basis. While some visas are “current,” allowing the individual to immediately apply for permanent residence, other categories are considerably backlogged, requiring the applicant to wait years.

The overall numerical limit for permanent employment-based immigrants is 140,000 per year. This number includes the immigrants plus their eligible spouses and minor children, meaning the actual number of employment-based immigrants is less than 140,000 each year. In addition, each country is limited to 7 percent of the worldwide level of U.S. immigrant admissions, otherwise known as per-country limits. The 140,000 visas are split between five preferences, detailed below:

The Backlog

The date that determines when an individual is eligible to apply for permanent residence is known as the “priority date.” This is the date the application for labor certification is filed with DOL, or if a labor certification is not required, the date the petition for the immigrant worker is filed with USCIS. Because of the numerical and per-country limits placed on permanent employment-based visas, the backlog in filing for permanent residence can be extensive.

As of April 2011, the first, fourth, and fifth preference categories had priority dates which were current for all nations. For unskilled workers in the third preference, where only 5,000 visas are available each year, demand far exceeds the supply of visas. Consequently, at the time of publication of this fact sheet, USCIS began processing visas for unskilled workers (from most countries) whose application priority date was July 2003. In other cases, backlogs occur when the demand for workers from specific countries outpaces the overall per-country limit. For instance, at the time of publication of this fact sheet, USCIS was only considering visa applications of Chinese and Indian workers in the second employment preference whose applications were filed on or before July and May 2006, respectively.

How Much Do These Visas Cost?

Employers must pay a $325 filing fee for the temporary work visas listed above (H-1B, H-2A, H-2B), as well as a training fee of $750-$1,500 depending on the size of the employer, and an additional anti-fraud fee of $500. Employers who have more than 50 employees, more than half of whom are H-1B or L visa holders, must pay an additional $2,000 fraud fee for H-1B applicants and $2,250 for L visa applicants.

Application fees for permanent employment-based visas cost $580 for the initial labor certification, plus an additional $720-$985 to obtain the actual permanent resident visa (“green card”) either through consular processing or adjustment of status in the U.S.

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