Employment-Based Visas: Temporary & Permanent Workers

Overview

A foreign national wishing to come to the United States must first apply for a visa at a U.S. embassy or consulate. The purpose of your travel determines which visa you should apply for. An embassy or consulate official evaluates your visa eligibility based on U.S. immigration law.

There are two main categories of U.S. visas: nonimmigrant visas and immigrant visas. Nonimmigrant visas are intended for temporary stays in the U.S. and usually do not provide a pathway to citizenship. Immigrant visas, on the other hand, are for permanent residence and generally offer a pathway to U.S. citizenship.

A complete list of visas in both categories is available on the U.S. Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) websites. When it comes to employment-based visas, there are 20 types of temporary worker visas and 5 types of permanent worker visas, each with specific eligibility criteria and requirements.

Temporary Worker Visa Overview

Temporary employment visas can be divided into four main categories: Mutual Agreement visas, employer-driven visas, agency/program-driven and special visas.

Mutual Agreement visas is a coined term we use to describe visas granted based on international treaties, investments, or professional agreements. These include the E-1, E-2, E-3, and TN visas, which are official nonimmigrant visas under U.S. law. While E-3 and TN visas require a job offer from a U.S. employer, no USCIS petition (Form I-129) is required, distinguishing them from traditional employer-driven visas.

Employer-driven visas are official U.S. nonimmigrant visas that require a prospective employer to initiate the process by filing a nonimmigrant petition (Form I-129) with USCIS on the applicant’s behalf. Common examples include the H-1B and L-1 visas, which are job-specific and tied to a particular employer.

Program-driven visas have requirements established by government agencies such as the Department of State (DOS) or the Department of Homeland Security (DHS). Examples include the J-1 and Q-1 visas, which are tied to specific programs or cultural exchange initiatives and typically involve a designated sponsor organization.

Finally, there are special visas, such as the CW-1 visa, which is unique to the Commonwealth of the Northern Mariana Islands (CNMI). This official nonimmigrant visa allows foreign nationals to work in the CNMI until 2028, as the territory transitions fully to U.S. immigration law.

Permanent Worker Visa Overview

Employment-Based Visas (EB Visas) allow approximately 140,000 individuals each year (plus their spouses and children) to immigrate to the U.S. based on their job skills. These visas are divided into five preference categories:

1. First Preference (EB-1): Priority workers with extraordinary ability, outstanding professors/researchers, or multinational executives/managers.

2. Second Preference (EB-2): Professionals with advanced degrees or exceptional ability; may qualify for a National Interest Waiver.

3. Third Preference (EB-3): Skilled workers, professionals, and other workers.

4. Fourth Preference (EB-4): Special immigrants, including religious workers and certain employees of U.S. government abroad.

5. Fifth Preference (EB-5): Immigrant investors who create jobs through capital investment in the U.S.

Some preference categories require a permanent job offer from a U.S. employer. In these cases, the employer acts as the sponsor/petitioner and files the immigrant petition with USCIS.

For the second and third preference categories, the employer generally must obtain a labor certification from the Department of Labor (DOL). This certification verifies that there are not enough qualified U.S. workers for the position and that hiring a foreign worker will not negatively affect wages or working conditions.

Certain Schedule A occupations (e.g., professional nurses, physical therapists, and individuals of exceptional ability) are exempt from labor certification. Applicants in the EB-2 category may request a National Interest Waiver, allowing them to bypass the job offer and labor certification if their work benefits the U.S. nationally.

While F-1 is a student visa, holders can work temporarily through OPT (post-graduation) using an EAD. This is technically temporary employment, often in their field of study, and can serve as a bridge to employer-sponsored visas or permanent residency (EB visas). F-1 students on OPT/EAD may later transition to EB visas if sponsored by an employer.

In the next article, we will explore temporary worker visas in more detail. For additional information, see: Temporary Worker Visas – U.S. Department of State, Temporary Nonimmigrant Workers – USCIS, Permanent Workers – USCIS and S.358 - Immigration Act of 1990 - Congress.gov.