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Immigration — Massachusetts


Federal law regulates immigration issues for Massachusetts employers. These laws impose requirements on all employers to verify the identity and employment eligibility of employees. In addition, an employer who has federal contracts must use an Internet-based system known as E-Verify to determine its employees’ employment eligibility. This chapter includes an overview of these employment-related immigration practices and laws, including regulations concerning nonimmigrant visas, labor certification, and permanent residency.

Employment eligibility

The Immigration Reform and Control Act (IRCA) prohibits an employer from hiring or continuing to employ individuals with knowledge that they are unauthorized to work in the United States. To comply with the law, an employer must verify the identity and employment eligibility of all employees hired after November 6, 1986, including U.S. citizens and non-U.S. citizens, by completing a document known as a Form I-9 for each employee. The employer may access the Form I-9 at:

The Form I-9 contains two sections.

  • Section 1 - The employee fills out Section 1, which requests basic information about the employee and requires that the employee attest that she or he is one of the following:
    • a citizen of the United States
    • a non-citizen national of the United States
    • a lawful permanent resident
    • an alien authorized to work in the United States.
  • Section 2 - In Section 2, the employer must certify that it reviewed the employee’s identification documents.

Completing the Form I-9 

An employer should require every employee to complete Section 1 of Form I-9 on the first day of paid work. When an employee presents his or her identification documents in accordance with Section 2 of Form I-9, the employer may not demand more or different documents than the employee presents if the employee’s documents are acceptable under the Form I-9 requirements. In addition, the employer must review and accept documents that reasonably appear to be genuine and relate to the person presenting them. 

If an employee does not possess the required documents when employment begins, the employer may accept receipts for replacement documents. The employee must then show its employer original replacement documents within 90 days of hire.

Retention of the I-9

According to federal law, an employer must retain the Form I-9 for each employee for either:

  1. three years after the date of hire
  2. one year after the employee stops working for the employer

whichever is later. Paper I-9 forms should be purged after the mandatory retention period (the longer of one year from date of termination or three years from date of hire) is over.

Missing I-9s

If an employer discovers that it does not have a Form I-9 on file for a specific employee, it should immediately request that the employee complete it and submit appropriate identifying documentation as required in Section 2 of the form. The employer should date the new form at the time of completion.

I-9s in the event of a merger

If an employer acquires a business through a corporate reorganization, merger, or sale of stock or assets, and retains its predecessor’s employees, it is not required to complete new Form I-9s for those employees. Instead, the successor employer may rely on the Form I-9s completed by the predecessor employer if it continues to employ the employees. However, the successor employer is responsible for any deficient or defective Form I-9s of the predecessor employer.

An employer may also choose to treat employees who work for the new entity as new hires, and require them to complete new Form I-9s. If an employer chooses to treat continuing employees as new hires, it should enter the effective date of the merger or acquisition as the date the employee began employment in Section 2 of the new form.


An employer is required to reverify employment eligibility upon the expiration of certain identifying documents of the employee. This requirement does not apply to the expiration of a passport, permanent resident card, driver’s license, or state-issued identification card. An employer may also reverify employment authorization, in lieu of completing a new Form I-9, when an employer rehires an employee within three years of the date that the Form I-9 was originally completed and the employee’s authorization documents have expired.

Expired documents

To track expiration dates of employee authorization documents, an employer may want to institute a reminder system that provides advanced notification.

Special requirements that apply to federal contractors

Since May 21, 2009, the federal government requires federal contractors and subcontractors to use the E-Verify system. The rule requires federal contractors to agree, through language in their federal contracts, to use E-Verify to confirm that both:

  1. the employment eligibility of all persons hired during a contract term
  2. the employment eligibility of federal contractors' current employees who perform contract services for the federal government within the United States.

The rule only affects federal contractors who are awarded a new contract containing the E-Verify clause after May 21, 2009.

Federal contractors may not use E-Verify to verify current employees until they are awarded a contract that includes the E-Verify clause.

Citizen status and working in the United States

An employee does not have to be a citizen to work in the United States. The following section is an overview of commonly used nonimmigrant visas.    

B-1 - Business visitor

B-1 classification applies to individuals who engage in temporary business activities that promote international trade, commerce, or investment. The B-1 visa allows an individual to come to the United States for a short period of time to complete one or more of the following actions:

  • meet and consult with U.S. business associates
  • attend nonproductive training for the benefit of an overseas company
  • attend professional or business conventions, conferences or meetings
  • observe the conduct of business or other professional or vocational activity.

A B-1 visitor is not authorized to perform productive work in the United States. She or he must maintain a foreign residence abroad to which she or he intends to return at the end of the authorized period of stay. The B-1 visitor should generally remain on a foreign employer’s payroll and should not receive compensation from a U.S. source, other than reimbursement for incidental expenses.

B-1 visitors are generally admitted for the period of time necessary to conduct specific business. In theory, a B-1 visitor may be admitted for a maximum of six months. However, in practice, immigration officers typically admit business visitors for no more than 30 to 90 days. Individuals may apply to extend a period of stay for up to six months. However, prolonged business visits may raise the presumption that the B-1 visitor is engaged in productive employment. A B-1 visitor may also change to another nonimmigrant status. However, if an individual applies for change of status within 30 days of entry into the United States, the government may presume that the individual’s B-1 entry was fraudulent or made with the intention to immigrate.

E-1 - Treaty trader

E-1 treaty trader classification allows the visitor to carry on substantial trade, including trade in services or technology, so long as the trade is principally between the United States and the treaty country. For an applicant to qualify for E-1 status all of the following conditions must be met:

  • The applicant must be a national of a treaty country.
  • The company for which the applicant is coming to the United States must share the nationality of the treaty country.
  • The international trade must be “substantial” in that there is a sizable and continuing volume of trade.
  • The trade must be principally between the United States and the treaty country, which means that more than 50% of the international trade involved must be between the United States and the country of the applicant’s origin.
  • The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of its company.
  • The applicant intends to depart the United States upon the termination of E-1 status.

E-2 - Treaty investor

E-2 treaty investor classification applies to an individual who develops and directs the operations of a commercial enterprise in which she or he has invested or is in the process of investing a substantial amount of capital. To qualify for E-2 status, the investor must demonstrate all of the following:

  • The investor is a national of a treaty country.
  • The investor has invested capital or is actively in the process of investing capital.
  • The enterprise is currently running or will open its doors imminently.
  • The investment is substantial.
  • The investment is more than a marginal one solely for earning a living.
  • The applicant will fill an executive/supervisory role or possesses skills essential to the company’s operations.

F-1 - Students

F-1 classification allows an individual to come to the United States to pursue an academic program as a full-time student. An F-1 student is issued a Form I-20 by the sponsoring school and applies for an F-1 visa at a U.S. consulate abroad. An F-1 student may remain in the United States for the time period required to finish the educational program.

F-1 students may be entitled to work authorization. Enrolled F-1 students, as well recent graduates, may be eligible to engage in “practical training” in the relevant field of study. There are two common types of practical training:

  1. curricular practical training
  2. optional practical training.

Curricular practical training

Curricular practical training (CPT) is issued to students currently enrolled on a full-time basis at an approved educational institution to obtain work experience in a field of study. This type of work experience consists of alternative work/study, internship, cooperative education or any other type of required internship or practicum that is offered by a sponsoring employer through a cooperative agreement with the school. The student usually receives academic credit for this training. The educational institution grants the CPT and the student’s Form I-20 is endorsed with the dates the student is eligible to work, as well as the number of hours per week. A student with CPT status must present an original Form I-20 to an intended employer before employment may lawfully commence.

Optional practical training

Optional practical training (OPT) is granted to students who wish to work in a field of study but are not going to work as part of an academic program. OPT is granted for a maximum of 12 months throughout the student’s academic career. For OPT eligibility, the student must submit an application to the federal government for an employment authorization document (EAD). The OPT employment may not commence until the student receives the EAD card.

H-1B - Specialty occupations

The H-1B program applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models of distinguished merit and ability. The H-1B visa classification permits a foreign national to work in the United States for a temporary period in a “specialty occupation.” A person may hold H1B status for a maximum of six years, and it may be issued in increments of up to three years by the USCIS. An employee may receive extensions of H1B status beyond six years in certain circumstances if the individual is in the process of applying for employment-based permanent residence. A specialty occupation is one that requires:

  • theoretical and practical application of a body of highly specialized knowledge
  • attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

There are numerous occupations that potentially qualify as specialty occupations. The employer must prove – through objective evidence – that the job offered falls within the statutory and regulatory definitions set forth. Typical occupations qualifying for H1B visa status include professions, which are defined by INA §101(a)(32) to include architects, engineers, lawyers, physicians, surgeons and teachers in elementary or secondary schools, colleges, academies or seminaries. H-1B visas are employer and job specific.

H1B visas are numerically limited, with a total of 85,000 visas available each fiscal year (20,000 of these visas are restricted to individuals who have received master’s degrees or higher from U.S colleges or universities). This limitation is referred to as the H1B cap. When the demand for high-skilled workers exceeds the annual cap for H-1B visas, USCIS then uses a random selection process to choose from the pool of applications received. This is often called the H-1B “lottery.” USCIS first conducts the lottery for the 20,000 individuals who hold a U.S. master’s degree or higher; those individuals who are not selected are put back into the pool for the 65,000. This means that individuals that enter the lottery with a U.S. master’s degree or higher have two chances to be selected at the H-1B annual lottery.

The H-1B1 (Chile and Singapore) program allows employers to temporarily employ foreign workers from Chile and Singapore in the United States on a nonimmigrant basis in specialty occupations. Current laws limit the annual number of qualifying foreign workers who may be issued an H-1B1 visa to 6,800 with 1,400 from Chile and 5,400 from Singapore.

Before the employer can file a petition with USCIS, the employer must attest on a labor condition application (LCA), certified by the U.S. Department of Labor (DOL), that employment of the H-1B worker will not adversely affect the working conditions and wages of similarly employed U.S. workers. Before filing the LCA with DOL, the employer must provide notice to U.S. workers that an LCA is being filed through electronic or physical postings for 10 days at the intended worksite(s). This gives U.S. workers notice that the employer intends to hire an H-1B worker and serves as an additional measure to protect current U.S. employees. This requirement, which is commonly referred to as the “notice or posting” requirement, informs U.S. workers of the terms of the employment of H-1B workers as specified on the LCA. It also informs U.S. workers of their right to examine certain documents and their ability to file complaints if they believe that violations have occurred. Affected workers are those at the same place of employment and in the same occupational classification in which the H-1B workers will be or are employed. Affected workers need not be employed by the H-1B petitioner to qualify as such: The H-1B petitioner’s notification responsibilities extend to all affected employees, regardless of whether they are employed by the H-1B petitioner or by a third-party company.

Employers must submit an LCA to the DOL electronically through the FLAG system attesting to compliance with the requirements of H-1B or H-1B1. FLAG is a cloud-based portal designed to replace the Office of the Foreign Labor Certification’s (OFLC) previous iCERT System and serves as the new application filing and case management solution for all foreign labor certification programs, including LCA, CW-1, H-2A, H-2B, PERM applications and their Prevailing Wage. Employers are able to prepare H-1B and H-1B1 using the Form ETA-9035E, Labor Condition Application for Nonimmigrant Workers in the FLAG system.

LCAs must not be submitted more than six months before the beginning date of the period of employment. The two exceptions to electronic filing are employers with physical disabilities or those who lack Internet access and cannot electronically file the Form ETA-9035E. An employer must petition the administrator of OFLC for prior special permission to file an LCA by mail on the Form ETA-9035. After the employer’s H-1B petition is approved by USCIS, the individual worker can obtain an H-1B visa stamp by appointment at the U.S. consulate or embassy in his or her native country. If the individual is already in the United States, a change of status to H-1B is possible; and if the individual is already in H-1B status, he or she can begin working for a new H-1B employer as soon as the new employer’s petition is filed without having to wait for an approval.

H-1B visa requirements:

  • For a specialty occupation H-1B petition, the employee must have a bachelor’s degree or the equivalent experience.
  • The employer for an H-1B petition must obtain a labor condition application (LCA) from the U.S. Department of Labor before filing the H1B petition with the USCIS.
  • An employee who has previously received an H1-B visa, or been granted H1-B status is generally exempt from the numerical limitations.
  • An employee who is presently employed in H1-B status may utilize the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21) to transition their H1B to a different employer.

The spouse and minor child/ren of an H1-B employee are authorized to live in the United States in H-4 status, and to study, but are not permitted to work.

The LCA verification process requires the employer to certify that the:

  • H-1B individual will be paid the higher of the prevailing or actual wage for that occupation in the area of intended employment.
  • Employer will offer the individual the same terms and conditions of employment that it offers to U.S. workers.
  • Employment of the noncitizen will not adversely affect the wages and working conditions of workers similarly employed in the area of intended employment.
  • Employer will not employ the individual in a strike or lockout, or work stoppage related to a labor dispute in the occupation at the time the application is signed.
  • Employer will notify other similarly situated employees (or their agent) of its intent to employ an H-1B individual in the relevant position.

The employer must also document its compliance with the LCA verifications by retaining relevant documents and by making available a Public Access File ((PAF), and also called a “public examination file” is a file that needs to be maintained by any U. S. employer hiring people in H-1B, H-1B1 or E-3 temporary nonimmigrant worker statuses. It is intended to include more background information related to the attestations made on the Labor Condition Application used for the Form I-129 and/or visa application that was used to acquire the nonimmigrant worker status. The file may be requested by any member of the public through telephone or email inquiries. Any member of the public requesting access to the documents must be allowed to capture the information through such means as transcription, scanning or taking photographs.

H-1B status is initially granted for no more than three years. Extensions are available, but the employee is subject to a maximum cumulative period of six years of H-1B status. H-1B extensions beyond the six-year limit are possible if the individual is the beneficiary of an employment-based permanent residence process that has been pending for more than one year or is the beneficiary of an approved immigrant petition and is unable to adjust status to permanent residence because of per-country limits.

The employer will be liable for the reasonable costs of the foreign national's return transportation if the employer terminates the foreign national before the end of the foreign national's period of authorized stay. The employer is not responsible for the costs of foreign national's return transportation if foreign national voluntarily resigns the position.

Currently, to qualify for an H-1B visa, a company must be willing to pay a qualifying worker a minimum salary of $60,000 annually.

In October 2020, DHS issued the Strengthening of the H-1B Nonimmigrant Visa Classification Program Interim Final Rule revising the definition of "Specialty Occupation" and the DOL issued the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Interim Final Rule, amending the regulations governing permanent labor certifications and LCAs to incorporate changes to the computation of prevailing wage levels. On December 1, 2020, the U.S. District Court for the Northern District of California vacated this rule. On January 8, 2021, USCIS published a final rule entitled Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions that dramatically altered the way in which H-1B registrations were selected for the annual H-1B statutory cap, as established by Congress. The rule replaced the previous random selection process with a new wage-based selection process that prioritized the selection of H-1B registrations based on employers who pay the highest wages. This final rule was withdrawn on December 22, 2021, because the rule was vacated by a federal district court.

H-2A and H-2B - Agricultural and other seasonal/temporary workers

H-2A classification is a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to perform agricultural labor or services of a temporary or seasonal nature. The employer must test the labor market by filing a temporary labor certification application with the DOL certifying that there are no able, willing, qualified, and available workers in the United States, and that the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed workers in the United States.

H-2B classification applies to foreign workers who temporarily come to the United States to perform nonagricultural services or labor on a one-time, seasonal, peak-load or intermittent basis. H-2B classification requires the employer to test the labor market by filing a temporary labor certification application with the DOL.

The DOL either:

  1. certifies that there are no able, willing, qualified, and available workers in the United States and that the foreign worker’s employment will not adversely affect the wages and working conditions of similarly employed U.S. workers
  2. issues a notice that such certification cannot be made prior to filing a petition with United States Citizenship and Immigration Services.

Currently, a 66,000 cap exists on the number of foreign workers who may receive initial H-2B status during each fiscal year (October 1 through September 30). Returning H-2B workers are exempt from this cap limitation, however, employers still must file an H-2B application with the DOL for returning workers. The spouse and children of an H-2B worker (known as H-4 nonimmigrants) also are not counted against the cap.

H-3 - Trainees

H-3 classification is reserved for foreign nationals entering the United States to receive training with a domestic company. To be classified as an H-3 trainee, the sponsoring employer must submit a petition and training program that includes:

  • a detailed description of the structured training program, including the type of training and supervision to be given
  • the number of classroom instruction hours
  • the number of hours of on-the-job training (supervised and unsupervised)
  • a summary of the trainee’s prior training and experience
  • an explanation of why the trainee needs the training
  • an explanation of how the training will prepare the foreign national for work that is not available or is new in the country where the foreign national will work
  • an explanation of why the foreign national cannot obtain the training in his or her country of origin and why the training must be provided in the United States
  • an explanation of why a training program is beneficial to the petitioning company providing the training
  • the source of compensation received by the foreign national.

J-1 - Exchange visitor

J-1 classification applies to individuals who participate in a recognized international exchange program according to the provisions of the Mutual Educational and Cultural Exchange Act. The purpose of this law is to increase mutual understanding between the United States and other countries by means of educational and cultural exchanges. There are a variety of educational and cultural exchange programs to facilitate J-1 sponsorship. 

The U.S. Department of State designates public and private entities to act as exchange sponsors. Designated sponsors facilitate the entry of foreign nationals into the United States as exchange visitors to complete the objectives of one of the following exchange visitor program positions:

  • au pair/nanny
  • camp counselor
  • student at a college or university
  • student at a secondary school
  • government visitor
  • international visitor (reserved for U.S. Department of State use)
  • foreign physician
  • professor and research scholor or short-term scholar
  • short-term scholar
  • specialist
  • summer work or travel
  • student, intern, or trainee.

At the conclusion of the program, a J-1 exchange visitor is expected to return to her or his home country to use the experience and skills acquired in the United States. 

Certain J-1 exchange visitors may be subject to a two-year foreign residency requirement at the end of the period of stay. The two year foreign residency requirement may apply to J-1 exchange visitors who participate in programs that were financed in whole or in part, directly or indirectly, by an agency of the U.S. government or by the exchange visitor’s government. It may also apply to individuals who are nationals or residents of a country that has been designated by the Department of State as requiring the skills of the exchange visitor. A J-1 exchange visitor who is subject to the foreign residency requirement must return to his or her country of nationality or last residence after completing the program in the United States and must reside there physically for two years before he or she may become eligible to apply for an immigrant or temporary worker visa.

A J-1 exchange visitor who is subject to the two-year foreign residency requirement must apply for a waiver of that requirement if she or he seeks to remain in the United States beyond the end date of the program or desires a change in visa status. The exchange visitor must assert one of the following claims to obtain a waiver:

  • exceptional hardship to a U.S. citizen or legal permanent resident spouse or child of the J-1 exchange visitor
  • the J-1 exchange visitor will be persecuted due to race, religion, or political opinions if he or she returns to his or her country of residence
  • an interested U.S. Government Agency request
  • a no-objection statement from J-1 exchange visitor’s government
  • a request by a designated State Health Department or its equivalent.

L-1 L-1B – Intracompany transfers of managers/ executives or specialized knowledge personnel

The L-1A and L-1B visas are designed to facilitate the temporary transfer of managerial, executive and specialized knowledge personnel from foreign entities to related U.S. entities. L-1A status is for managers and executives and L-1B status is for persons with specialized knowledge of company methods, products, procedures, operations and the like. The L-1 beneficiary need not perform the same type of work in the U.S. as he or she performed abroad, so an alien for example who had specialized knowledge abroad could enter the U.S. as a manager or executive. To qualify for L-1 status, the employee must have worked for the company abroad in a managerial, executive or specialized knowledge position for at least one full year of full-time employment during the three years prior to the transfer to a managerial, executive or specialized knowledge position with the related U.S. entity. First-line supervisors are not eligible for L-1A status as managers unless the persons they supervise are professionals.

The U.S. employer must file a petition for L-1 status with the regional USCIS Service Center with jurisdiction over the location where the individual will work. Canadian transferees may submit the petition at the U.S.-Canada border for immediate adjudication. Once the employer’s petition is approved, the individual may obtain an L-1 visa stamp from the U.S. embassy or consulate abroad or if already in the United States, may commence the L-1 employment. There is no prevailing wage or LCA requirement for L-1s; consular offices should only determine whether the L-1 applicant meets FLSA wage requirements or would be a public charge.

L-1 status is initially granted for three years, and extensions are available for two-year periods. L-1A managers/executives are entitled to up to seven years of L-1 employment in the United States and L-1B specialized knowledge personnel are eligible for a maximum of five years of authorized stay. There are also L-1 visa holders who visit the United States intermittently for brief periods to direct company operations or carry out some essential short-term duty. Such persons, who work only part-time or commute from abroad, may effectively extend their L-1 status indefinitely, provided that their U.S. employment continues to be consistent with the requirements for L managers, executives or specialized-knowledge workers. Generically, those who qualify are known as 'intermittent L-1s. Employment in the United States must be intermittent, not the employment abroad. Significant amounts of time outside the United States working for the same employer arguably amounts to intermittent employment in the United States, regardless of whether that time amounts to 183 or more days per year. However, extended employment in the United States or a declaration of U.S. residency for tax purposes – even if within the longer-term context of permanent assignment abroad – may trigger a rebuttable presumption of abandonment of intermittent status.

Dependents of L-1 transferees obtain L-2 status. Unlike most temporary visa categories that do not allow dependents to work, L-2 spouses may obtain employment authorization.

Blanket L-1 status

Some multinational companies may qualify for “blanket” L-1 status. Typically, this is available for entities that transfer more than 10 people per year, have annual sales in excess of $25 million or have more than 1,000 U.S. employees. Nonprofit organizations cannot file blanket petitions. Blanket L-1 status allows the U.S. entity to bypass the USCIS petition process in individual cases. Instead, the U.S. entity sends a special form to the transferee, who then applies for L-1 status directly at the U.S. consulate or embassy.

The employer must first obtain approval of the blanket petition from one of USCIS’s service centers. The blanket petition is approved initially for a period of three years but may be extended indefinitely after that. Generally, employers should refile and update their blanket petitions after the parent company completes and acquisitions of other companies, so the new blanket petition accurately reflects the parent company’s subsidiaries and affiliates. Blanket L petitions may not be used for L-1B specialized knowledge petitioners where the applicant is not a professional.

O - Extraordinary ability

O-1 classification applies to foreign individuals who have extraordinary ability in science, art, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry. “Extraordinary ability” generally means that the individual is at the top of his or her field of endeavor. In other words, the individual has an above-average degree of skill and recognition and is generally recognized as outstanding, leading, or well-known in his or her profession.

The O-2 nonimmigrant category applies to an individual who comes to the United States solely to accompany or assist an O-1 performer or athlete.

The O-3 nonimmigrant classification includes the spouse or children of an O-1 or O-2 nonimmigrant.

To qualify for O-1 classification, (and to support classification of O-2 and O-3 accompanying individuals), the O-1 individual must come to the United States to work in his or her area of ability or achievement. The government may admit an O-1 non-immigrant even if his or her work in the United States does not require extraordinary ability or achievement. An individual who submits an O-1 and O-2 petition must support it with written advisory opinions from a peer group, labor organization, or management organization.

P - Artists, athletes, and entertainers

P-1 classification applies to either:

  • an internationally recognized athlete who performs at a specific athletic competition as an individual athlete or as part of a group or team
  • a member of an internationally recognized entertainment group who has had a sustained relationship with the group (in most cases, for at least one year) and provides integral functions to the group’s performance in the United States.

P-2 classification applies to an artist or entertainer who comes to the United States to perform for an organization that has an agreement of reciprocity with foreign organization.

P-3 classification applies to an artist or entertainer whose performance, teaching or coaching is integral to the performance of a group that performs a culturally unique program.

P-4 classification applies to dependents of P-1, P-2, or P-3 visa holders.   

The government generally approves P visas for a sufficient amount of time to complete the event or competition described in the petition, not to exceed one year.

R-1 - Temporary religious workers

The temporary religious worker classification is divided into three categories:

  1. ministries of religion
  2. professional workers in a a religious vocation or occupation
  3. other workers in a religious occupation or nonprofessional vocation.

Any bona fide, nonprofit, religious organization in the United States may file a petition for a religious worker. Also, a foreign worker may request admission to the United States as a temporary religious worker. To qualify as a petitioner, a religious organization must have (or be eligible for) tax-exempt status as a non-profit religious organization. To qualify as an R-1 beneficiary, a foreign worker must have been be a member of a religious denomination that has a bona fide, nonprofit, religious organization in the United States for two years immediately preceding the application.

A religious worker may be admitted temporarily to the United States for at least one of the following reasons:

  • to carry on the vocation of a minister of the religious denomination
  • to work for the religious organization at the request of the organization in a professional capacity
  • to work in a religious vocation or occupation for a religious organization or an affiliated organization at the request of the organization.

The government will approve an initial period of stay for an R-1 individual and his or her dependents for the requested period, not to exceed three years. An extension of stay may be granted for an additional two years, not to exceed a total maximum stay of five years.

TN - Treaty NAFTA

The North American Free Trade Agreement (NAFTA) creates special economic and trade relationships between the United States, Canada and Mexico. The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals, to work in the United States. Permanent residents (that is, individuals with lawful immigrant status but who are not citizens) are not eligible to apply for TN classification. 

A professional of Canada or Mexico may work in the United States if all of the following qualifications are met:

  • the professional is a citizen of Canada or Mexico
  • the professional is on a NAFTA list
  • the position in the United States requires a NAFTA professional
  • the Mexican or Canadian professional will work in a full-time or part-time job for a U.S. employer (self-employment is not permitted)
  • the Mexican or Canadian applicant possesses the requisite qualifications for the position offered.

The government may admit TN professionals into the United States or grant an extension of stay for up to three years.

Visa waiver program

The Visa waiver program (VWP) enables nationals of certain countries to stay in the United States for 90 days or less without obtaining a visa. VWP eligible travelers have the option of applying for a visa. Not all countries participate in this program, and not all travelers from VWP countries are eligible to use the program. The government screens VWP travelers before admission into the United States, and they are enrolled in the U.S. Department of Homeland Security’s US-VISIT program.

The following countries currently participate in the VWP: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungry, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom.

A citizen of one of these countries may travel without a visa under the VWP if she or he meets all of the following requirements:

  • receipt of authorization to travel under the VWP through the Electronic System for Travel Authorization (ESTA)
  • appropriate passport valid for six months past the expected stay in the United States
  • travel for business, pleasure or transit only
  • a stay in the United States for 90 days or less
  • travel on an approved carrier
  • a return trip ticket to any foreign destination.

Foreign workers and permanent employment

A permanent labor certification issued by the DOL allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the employer may submit an immigration petition to the U.S. Citizenship and Immigration Services, the employer must obtain an approved labor certification request from the DOL. The DOL must certify to the United States Citizenship and Immigration Services that there are no able, willing, qualified and available workers in the United States to accept the job at the prevailing wage for that occupation. The DOL must also certify that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed workers in the United States.

The qualifying criteria for permanent labor certification include:

  • hire of the foreign worker as a full-time employee
  • a bona fide job opening available to workers in the United States
  • payment of at least the prevailing wage for the occupation in the area of intended employment
  • job requirements that adhere to what is customarily required for the occupation in the United States and that are not tailored to the foreign worker’s qualifications. 

In addition, the employer shall document that the job opportunity has been described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.

Permanent residence

In 1990, Congress created a priority system for granting permanent residence status to foreign workers based on employment skills. The government grants immigrant visas to foreign workers who qualify under the following five employment-based (EB) preference categories.

EB-1 eligibility

  • Extraordinary ability - The first employment-based preference category applies to foreign nationals with “extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.” The foreign individual must be at the top of his or her field of endeavor for the government to grant this classification. For instance, a foreign individual who receives a major internationally recognized award, such as a Nobel Prize, will qualify for EB-1 classification. Since few workers receive such prestigious awards, the government may also consider alternative evidence. The worker may submit alternative evidence of:
    • receipt of nationally or internationally recognized prizes or awards for excellence
    • membership in associations in the field that demand outstanding achievement of their members
    • published material about the foreign individual in professional or major trade publications or other major media
    • evidence that the foreign individual has judged the work of others, either individually or on a panel
    • evidence of the foreign individual’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
    • evidence of the foreign individual’s authorship of scholarly articles in professional or major trade publications or in major media
    • evidence that the foreign individual’s work has been displayed at artistic exhibitions or showcases
    • performance in a leading or critical role in distinguished organizations
    • evidence that the foreign national commands a high salary or other significantly high remuneration in relation to others in the field
    • evidence of commercial success in the performing arts.
  • Outstanding professors and researchers - To qualify as an outstanding professor or researcher, the individual must be internationally recognized for his or her outstanding academic achievements in a particular field. In addition, an outstanding professor or researcher must have at least three years of experience in teaching or research in an academic field, and must enter the United States in a tenured or tenure-track teaching position or comparable research position at a university or other institution of higher education.

    If the employer is a private company rather than a university or educational institution, the department, division, or institute of the private employer must employ at least three persons full-time in research activities and have achieved documented accomplishments in an academic field.

    Evidence that the professor or researcher is recognized as outstanding in the academic field must include documentation of at least two of the following achievements:
    • receipt of major prizes or awards for outstanding achievement
    • membership in associations that require their members to demonstrate outstanding achievements
    • published material in professional publications written by others about the alien’s work in the academic field
    • participation, either on a panel or individually, as a judge of the work of others in the same or another academic field
    • original scientific or scholarly research contributions in the field
    • authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.
  • Multinational executive/managers - Some executives and managers of foreign companies who are transferred to the United States may qualify for EB-1 classification. A multinational manager or executive is eligible for priority worker status if he or she has been employed outside the United States in the three years preceding the petition for at least one year by a firm or corporation and seeks to enter the United States to continue service to that firm or organization. The employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate or a subsidiary of the employer.
    The petitioner must be a U.S. employer, doing business for at least one year, that is an affiliate, a subsidiary, or the same employer as the firm, corporation or other legal entity that employed the foreign national abroad.

EB-2 eligibility

EB-2 classification includes foreign individuals who are:

  • members of the profession holding an advanced degree or its equivalent
  • foreign individuals who benefit the national economy, cultural, or educational interests or welfare of the United States.

A petition for a foreign professional holding an advanced degree may be filed when the job requires an advanced degree (beyond the baccalaureate), and the foreign individual possesses such a degree or the equivalent. The petition must include documentation, such as an official academic record showing that the individual has a U.S. advanced degree or a foreign equivalent degree or an official academic record showing that the individual has both:

  • a U.S. baccalaureate degree or a foreign equivalent degree
  • letters from current or former employers showing that the individual has at least five years of progressive post-baccalaureate experience in the specialty.

Qualified foreign physicians who will be practicing medicine in an area of the United States certified by the Department of Health and Human Services as underserved may also qualify for this classification.

EB-3 eligibility

EB-3 classification is reserved for:

  • foreign workers with at least two years of experience as skilled workers
  • professionals with a baccalaureate degree
  • other workers with less than two years of experience, such as unskilled workers who can perform labor for which qualified workers are not available in the United States.

Skilled worker positions are not seasonal or temporary and require at least two years of experience or training. The training requirement may be met through relevant post-secondary education.

Due to the long backlog, a petitioner may expect to wait many years before being granted a visa under this category.

EB-4 eligibility

To qualify as an EB-4 special immigrant worker, an individual must work in one of the following professions:

  • religious worker
  • broadcasters
  • Iraqi/Afghan translators
  • Iraqis who have assisted the United States
  • International Organization employees
  • physicians
  • armed forces members
  • Panama canal zone employees
  • retired NATO-6 employees
  • spouses and children of retired NATO-6 employees.

Generally, the employer must file a petition to obtain this status for an employee.  However, under some circumstances, an individual may self-petition on his or her own behalf.

EB-5 eligibility

The employment-based fifth preference category is reserved for immigrants seeking to enter the United States to engage in a commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs. Of the approximate 10,000 visas available for this preference each year, 5,000 visas have been historically set aside for entrepreneurs who immigrated through a regional center pilot program. Foreign nationals who qualify in the EB-5 preference category do not require a PERM labor certification as part of their immigrant visa application.

Instead, EB-5 investors must comply with other eligibility requirements. Previously, after a federal court vacated regulations which increased investment requirements, the investment amount required for EB-5 investors was $1,000,000, although that amount could be lowered to $500,000 if the investment was made in a targeted employment area.

However, on March 15, 2022, President Joe Biden signed the EB-5 Reform and Integrity Act of 2022, which authorizes a restructuring of the EB-5 Immigrant Investor Regional Center Program through September 30, 2027. Under the new law, investors will be required to invest a minimum of $1,050,000, or $800,000 if the investment is made in a targeted employment area or infrastructure project. The new law also provides that 20% of the annual EB-5 visas will go to those seeking to invest in targeted rural areas, 10% for those seeking to invest in targeted high employment areas, and 2% for investors in infrastructure projects. Competent Immigration counsel should be contacted if seeking authorization in this category.

Hiring family-based permanent residents

The Immigration and Nationality Act allows for the immigration of foreigners to the United States based on relationship to a U.S. citizen or legal permanent resident. Family-based immigration falls under two basic categories: unlimited and limited.

To become a lawful permanent resident based on a relative’s status as a citizen or permanent resident, the relative in the United States must sponsor the individual and prove that he or she has enough income or assets to support the individual when in the United States. 

The relative sponsor and the immigrant must successfully complete two steps in the immigration process:

  1. USCIS must approve an I-130 immigrant visa petition filed by a sponsoring relative for you.
  2. The sponsors must demonstrate adequate income or assets to support the immigrant by completing and signing a document called an Affidavit of Support.

 Once this is complete, the immigrant will apply for the immigrant visa as explained below.

Unlimited family-based status

  • Immediate relatives of U.S. Citizens (IR) - The spouse, widow(er) and unmarried children under 21 of a U.S. citizen, and the parent of a U.S. citizen who is 21 or older.
  • Returning residents (SB) - Immigrants who lived in the United States previously as lawful permanent residents and are returning to live in the Untied States after a temporary visit of more than one year abroad.

Limited family-based status

  • Family first preference (FI) - Unmarried sons and daughters of U.S. citizens, and their children, if any.
  • Family second preference (F2) - Spouses, minor children, and unmarried sons and daughters (over age 20) of lawful permanent residents.
  • Family third preference (F3) - Married sons and daughters of U.S. citizens, and their spouses and children.
  • Family fourth preference (F4) - Brothers and sisters of U.S. citizens, and their spouses and children, provided the U.S. citizens are at least 21 years of age.


Compliance with immigration laws requires an employer to carefully complete paperwork, and retain documents in an organized manner. When an employer considers hiring an employee who is subject to a visa, the employer should allow sufficient advance time to determine whether the employee qualifies for the visa, and to submit an application. An employer also should seek legal counsel if it has any questions or concerns about the immigration status of its employees.