Immigration Law

Employment-Based Visas

Talent has no borders. The right visa makes that real.

Overview

Employment-based immigration is a system of carefully drawn exceptions. Each visa category has specific eligibility requirements, specific documentation expectations, and specific timing constraints. Each one is also enforced by an agency — USCIS, the Department of Labor, the Department of State — that has become more skeptical, more demanding, and more inclined to issue requests for evidence than at any point in recent memory. Successful employment-based filings, whether for an employer-sponsored petition or for a self-petitioned extraordinary ability case, depend on the precision of the supporting record and the strategic timing of the filing.

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The lay of the land — categories, preferences, and priority dates

Employment-based immigrant visas are divided into five preference categories. EB-1 is reserved for individuals of extraordinary ability, outstanding professors and researchers, and certain multinational managers and executives. EB-2 covers professionals with advanced degrees and individuals of exceptional ability, often through PERM labor certification or the National Interest Waiver. EB-3 covers skilled workers, professionals, and certain other workers. EB-4 covers special immigrants, and EB-5 covers immigrant investors.

Each category has an annual numerical limit and a per-country limit, and the interaction of those limits creates priority date backlogs that can extend years for some nationalities. The Visa Bulletin published monthly by the Department of State governs which priority dates are eligible to file for adjustment of status or consular processing. Strategy in employment-based work begins with understanding the category, the priority date, and the path the case will take from filing to permanent residency.

PERM labor certification — the foundation of most employment-based green cards

Most EB-2 and EB-3 cases begin with PERM labor certification, a process by which the employer must demonstrate to the Department of Labor that there are no qualified, willing, and available U.S. workers for the position. The employer conducts a defined recruitment campaign, evaluates the applicants, and certifies under penalty of perjury that no qualified U.S. worker was available. The process is detailed, technical, and unforgiving of error — a single misstep in the recruitment, the prevailing wage determination, or the supporting documentation can result in audit, denial, or supervised recruitment.

We represent employers throughout the PERM process. We draft the job description, set the minimum requirements in compliance with regulatory limits, obtain the prevailing wage determination, oversee the recruitment, evaluate applicant resumes, and prepare the ETA-9089 with audit-ready supporting documentation. Where a case is selected for audit, we respond with a complete record. The investment in doing PERM correctly is significant, and it is what makes the rest of the case possible.

EB-1 extraordinary ability and EB-2 National Interest Waiver — the self-petition routes

EB-1A, EB-1B, and EB-2 NIW allow eligible individuals to bypass the PERM process and self-petition for permanent residency. EB-1A requires sustained national or international acclaim and recognition demonstrated through a defined set of evidentiary criteria. EB-1B requires outstanding research or teaching in a specific academic field. EB-2 NIW requires that the petitioner's work have substantial merit and national importance, that the petitioner be well-positioned to advance the work, and that the United States benefit from waiving the labor certification requirement.

These cases are won on the strength of the evidence package — peer-reviewed publications, citations, awards, expert recommendation letters, media coverage, professional memberships, and demonstration of impact in the field. We work with each petitioner to identify the strongest evidence under each category, draft the petition narrative that ties the evidence to the legal standard, and assemble a record that USCIS can quickly recognize as meeting the burden. Recent USCIS guidance has tightened the EB-1A standards in particular, and the petitions we file reflect that elevated bar.

H-1B, L-1, O-1, and the nonimmigrant landscape

Most employment-based immigration paths begin with a nonimmigrant work visa. H-1B specialty occupation visas remain the most common, but the cap subjects most filings to a registration lottery with a selection rate that has hovered around twenty-five percent in recent years. L-1 intracompany transferees offer an alternative for multinational employers moving managers, executives, or specialized knowledge employees from a foreign affiliate. O-1 visas for individuals of extraordinary ability serve as both an immediate work option and a useful precursor to an EB-1A self-petition.

We handle H-1B registrations, full petitions, extensions, amendments, and transfers. We file L-1 petitions for both new offices and established multinational structures. We prepare O-1 petitions with the same evidentiary care we bring to EB-1A. Each of these visas has its own pitfalls — site visits, RFE patterns, beneficiary status maintenance issues — and our work is built around anticipating and avoiding them rather than reacting to them after the fact.

— Law Offices of Scott Gordon, PC

RFEs, denials, and appeals — when USCIS pushes back

A request for evidence from USCIS is not the end of a case. It is a structured opportunity to address the agency's concerns, supplement the record, and persuade the adjudicator. We respond to RFEs with thorough legal argument, additional documentation, and where appropriate expert evidence. Many of our most successful cases were initially flagged with an RFE that we then converted into an approval through careful response.

Where a case is denied despite a strong record, we evaluate the available remedies — motion to reconsider, motion to reopen, appeal to the Administrative Appeals Office, refiling with strengthened evidence, or where appropriate federal court litigation. Each option has its own timeline, cost, and likelihood of success. We do not push a case in a direction that is unlikely to succeed, and we do not abandon a case that has a real path to approval.

Coordination between employer and employee

Employment-based immigration is unusual in that the employer is typically the petitioner and the employee is the beneficiary, but both have interests in the outcome and both can be affected by the strategic choices the petition requires. We are careful to identify, at the outset of each engagement, which party we represent and how the inevitable strategic decisions — about timing, about the strength of the evidence, about how to characterize the role — will be made.

We represent both employers and employees in different cases. Where we represent the employer, we keep the beneficiary informed about the case status and the practical implications, while making clear that the strategic decisions belong to the company. Where we represent the employee, we work cooperatively with employer counsel to advance shared goals while protecting the individual interests of the worker. That clarity makes the relationship work, and it makes the cases run smoothly through what can otherwise be a politically charged process.