How Can I be Legally Authorised to Work in the US for Any Employer?
When it comes to applying for a work visa in the United States, it pays to understand the options available to you and to decide which best meets your needs. We often see migrants who have chosen a particular immigration path which imposes considerable restrictions on them when they may have had other more favourable options available given their circumstances. For example, depending on the country you wish to work in, you may find that some immigration routes may not lead to permanent residency, and some may not allow further extensions once the initial period has expired. Another consideration is whether your work visa will restrict you to work with a single nominated sponsor or whether it is possible to switch employers at will. Having the flexibility to work for any employer without seeking immigration clearance before doing so can be highly advantageous. In this article, we will explain two of the immigration options available for migrant workers who would prefer the flexibility to work for any employer in the United States, rather than being restricted to a single sponsor.
How Can I Secure A US Work Visa Without A Job Offer?
At the outset, it is important to note that most of the work-based immigration routes for the United States require applicants to have a job offer and sponsorship before being given permission to work. There are, however, some exceptions that may allow you to secure a work visa in the US without a job offer and hence be able to work flexibly.
First Preference EB-1 Visa (Extraordinary Ability)
Under the current US immigration policy, it is possible for those applying for an EB-1 visa who meet the definition of a person with ‘extraordinary ability’ to secure a work visa without a job offer. The evidence requirements for this visa category states clearly, “No offer of employment or labour certification is required”. That said, the bar for extraordinary ability is set high. To prove to USCIS that you meet the criteria for this route, you will need to provide at least three of the following ten items of evidence:
- Evidence of receipt of lesser nationally or internationally recognised prizes or awards for excellence
- Evidence of your membership in associations in the field which demand outstanding achievement of their members
- Evidence of published material about you in professional or major trade publications or other major media
- Evidence that you have been asked to judge the work of others, either individually or on a panel
- Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
- Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
- Evidence that your work has been displayed at artistic exhibitions or showcases
- Evidence of your performance of a leading or critical role in distinguished organisations
- Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
- Evidence of your commercial successes in the performing arts
The other option is to provide evidence of a ‘one-time’ achievement for a major internationally recognised award such as a Pulitzer prize or Olympic medal.
All of the other EB-1 routes require a job offer at the point of initial application, including the categories of:
- Outstanding professors and researchers, and;
- Multinational managers or executives
Second Preference EB-2 Visa (National Interest Waiver)
Most second preference EB-2 visa categories require applicants to be sponsored. As the rules state, “To qualify for an EB-2 visa, your employer must file a Form I-140, Petition for Alien Worker unless you are filing for a National Interest Waiver, in which case you can file a Form I-140, Petition for Alien Worker on your own behalf”. This relates to those applying under the Advanced Degree and Exceptional Ability categories.
Migrant workers applying under the EB-2 National Interest Waiver category are not required to have a job offer from a US sponsor. This is possible because USCIS allow applicants to ‘self-petition’ and file their own labour certification. In order to qualify for a work visa under this category, applicants need to provide evidence of an advanced degree or exceptional ability and that they meet the specific criteria for a National Interest Waiver. The National Interest Waiver criteria are as follows:
- The proposed endeavour must have both substantial merit and national importance
- You are well-positioned to advance the proposed endeavour
- It would be beneficial to the United States to waive the requirements of a job offer and thus the labour certification.
In addition, applicants need to complete and file a Form I-140, Petition for Alien Worker (this is the self-petition process). The key to making a successful National Interest application is providing sufficient evidence that you meet the above three criteria. If you are unsure if you do meet one of these criteria or if the evidence you have will be sufficient, it is advisable to engage the services of an Immigration Solicitor who can assess this for you. Where required, they will recommend that you source further evidence to support your application for an EB-2 visa.
When it comes to recommending the best immigration route for your needs, it is important to weigh up all of the relevant factors, including your current situation, whether you will be bringing family with you, your future intentions (i.e. whether you need the flexibility to switch employers and do you plan to remain in the US permanently), in addition to your qualifications and work experience. A specialist immigration lawyer will be able to recommend the range of options available to you. The two work visa options outlined in this article remove the requirement to have a job offer in order to work in the US, but there may be other ways, including based on your family connections and ancestry.