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Marilyn Orbach-Rosenberg
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Employment Immigration Lawyer in New York City and Queens

Whether you are an employer in need of willing and able workers or a foreign worker seeking employment in the U.S. on a permanent basis, an experienced New York City immigration attorney at Orbach Rosenberg Law can help you through the visa petition process as well as labor certification where required and other aspects of employment-based immigration in the U.S.

Employment-Based Visa Process

Employment-based (EB) visas are issued to different types of employees in five different categories defined by U.S. immigration law. These visas are immigrant visas as opposed to temporary, non-immigrant visas, meaning that the holder of an EB Visa can live and work in the United States on a permanent basis. The five preference categories are as follows:

  • EB-1 – This visa is for workers of extraordinary ability in the sciences, arts, education, business or athletics. This category also includes individuals who are outstanding professors or researchers, as well as multinational managers or executives.
  • EB-2 – The EB-2 category is for professionals holding an advanced degree (beyond a Bachelor’s) with at least five years of progressive experience in the profession, as well as persons of exceptional ability in the sciences, arts or business.
  • EB-3 – This category includes skilled workers and professionals as well as unskilled workers. An unskilled worker is a person capable of filling a position that requires less than two years of training or experience.
  • EB-4 – Certain special immigrants may apply for a visa in the EB-4 category, including broadcasters, religious workers, and certain people who worked abroad for the U.S. government or aided the U.S. armed forces in certain missions.
  • EB-5 – This last preference category is for immigrant investors infusing capital into new commercial enterprises in the U.S. which will create jobs. Investors may also immigrate under an E-1 or E-2 investor visa.

Who applies for an employment visa, the employee or the employer?

For an EB-2 or EB-3 preference worker, the employer must file a petition for the applicant, showing that a job offer has been made to the individual and that the employer has obtained labor certification from the Department of Labor, demonstrating that the employer cannot fill the position adequately with workers in the U.S. For other EB preference categories, either the workers themselves may file the immigrant visa petition, or the employer must petition for them, depending upon the specific nature of the preference.

In limited circumstances, an individual in the EB-2 category may be able to get a National Interest Waiver and self-petition for a visa even without a job offer and labor certification. This waiver is limited to someone such as a researcher or a professional of exceptional ability or advanced degree for whom an exemption would be in the national interest.

What if my application is denied?

If your application is denied, you may be eligible to appeal the decision to the Administrative Appeals Office (AAO). EB-2 and EB-3 denials are handled by Branch 6 of the AAO, while other appeals are heard by Branch 5. The timeframe for filing an appeal is limited, and successfully arguing an appeal can be a highly technical and complex matter. It is important to have a knowledgeable and experienced immigration attorney help you with your appeal.

Get Help with Your Employment Visa from an Experienced New York Immigration Attorney

Only 140,000 EB Visas are granted in a year, so it is important to do everything you can to make sure your application is prepared and presented accurately, completely and with the best chance of success. A New York City immigration attorney from Orbach Rosenberg Law can help you prepare your petition and represent you throughout the process, including any appeals that may be necessary. Contact Orbach Rosenberg Law to speak with a skilled and knowledgeable immigration attorney in New York City.

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