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What is Employment Visa Status?

When applying for a job with a company in the United States, you will often come across a question that sounds something like this: “will you now or in the future require sponsorship for employment visa status?” Generally speaking, this is the employer’s way of discovering whether or not the company will need to incur visa sponsorship costs when hiring a new employee. It’s also a discrete way to determine a job applicant’s legal residency in the US, as immigration laws generally prohibit asking a job applicant if they’re a foreign national.

Regardless of your citizenship status, you should answer this question truthfully. If you need the company to sponsor an employment visa in order for you to travel to and/or remain in the United States, then you should answer affirmatively—even if you are afraid that doing so will harm your chances of getting the job. Failing to disclose this until after you receive a job offer will almost certainly result in the job offer being rescinded, as the employer must initially attempt to fill the position with local US residents. The company can only hire a foreign national and sponsor an employment visa if there are no local qualified applicants. If the recruiter rejected qualified local applicants before hiring you, then he or she will have to go back and restart the hiring process.

How to Get an Employment Visa

The good news is that if you receive a job offer to work in the United States, your new employer will initiate the visa application process. The employer will start with obtaining a labor certification approval from the US Department of Labor, after which they will file an Immigrant Petition for Alien Worker (Form I-140) with the US Citizenship and Immigration Service (USCIS) based on your qualification category.

The US government grants approximately 140,000 employment-based immigrant visas each year. As there are typically more applicants than available visas, petitions are prioritized based on the aforementioned categories.  Generally speaking, immigrants who qualify for a higher category will take priority over those who qualify for a lower category. There are five categories that an applicant may qualify for:

  • E1 – persons with extraordinary ability in business, education, athletics, arts, or science, evidenced by acclaim and recognition; outstanding professors and researchers; multinational executives and managers
  • E2 – professionals with an advanced degree; individuals with exceptional ability in business, arts, or science, evidenced by a degree of expertise that is significantly greater than normal
  • E3 – skilled workers, professionals, and other workers 
  • E4 – special immigration cases (e.g. religious workers, NATO-6 civilians, and employees of the US government abroad) 
  • E5 – immigrant investors

Once everything on the employer’s end is taken care of, a government representative will contact you for your visa application forms and civil documents. While the actual application may vary depending on your situation, you’ll always need the following documentation:

  • Passport – must be valid for at least 6 months beyond the date of your intended entry into the United States (unless the US embassy or consulate requests longer)
  • Form DS-260 – Immigrant Visa and Alien Registration Application
  • Photographs – you’ll need two 2×2 photographs that meet the State Department’s requirements
  • Civil documents – birth certificate, marriage certificate, and any other documents specifically requested by the US embassy or consulate
  • Financial support – proof that you will not become a public charge in the United States (i.e. evidence that you will not require government assistance programs in the US)
  • Completed medical examination forms – you should receive these from the panel physician after completing your required medical exam and receiving all vaccinations

The final step in the visa application process is an interview with a consular officer at the nearest US embassy or consulate. The final decision as to whether your application is eligible for an immigrant visa rests with this officer, so this may be the most crucial step in the process. Assuming the interview goes well, the officer will get your digital fingerprints and return all of your original civil documents before you leave.

What Happens if the Sponsoring Employer Closes?

Unfortunately, an employment visa is based on qualifying employment in the United States. If your employer closes, shuts down, or goes out of business, your legal residency in the country is in jeopardy. You will likely be required to return to your home country immediately, though you should speak with an immigration attorney as soon as possible to evaluate if there are legal means for you to remain in the United States. Depending on how long you have been in the country and if you have direct family ties to US citizens, you may be able to apply for a green card and stay in the US as a legal permanent resident.

What if the Employment Agreement is Terminated?

Just as your employment visa may be revoked if your employer goes out of business, your visa will likely be rescinded if your employment agreement is terminated. This may occur if you quit, are laid off, or fired. Again, if you find your employment visa in jeopardy, you should consult with an immigration attorney as soon as possible to discuss options to avoid deportation.

The Benefits of Working With an Immigration Attorney

It’s certainly possible to manage the visa application process on your own, but it’s generally recommended that you consult with an immigration attorney to ensure the process goes smoothly. A single mistake can derail your visa application, and unfortunately mistakes happen all the time. Your employer may be willing to restart the visa application process if your application is denied, but in many cases the additional time and effort required results in the job offer being rescinded. Having an experienced immigration attorney in your corner is the surest way to successfully get your visa in a timely manner.

If you are already in the United States and you have reason to believe that your employment sponsorship is in jeopardy, it’s best to meet with an immigration attorney before the government moves to revoke your visa or otherwise remove you from the country. Depending on your situation, you may qualify for another type of visa to extend your stay in the country, or you may even be able to apply for legal permanent residence in the US with a green card. If none of these options are available to you, it’s better to voluntarily leave the country than to await deportation, as voluntary departure makes it much easier to return to the country should you qualify in the near future.

 

Call our Immigration team at (480) 626-2388 to discuss your case today.

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