FAQ: Employment Based Visas

The H-1B visa is a nonimmigrant visa which allows foreign nationals to work in the U.S. and perform services in professional job. The job must be in a ‘specialty occupation’ and must require a bachelor’s degree as a minimum for entry into the field.

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent.

In addition, new applicants for H-1B are subject to the H-1B Cap. A 65,000 annual limit is imposed on the number of H-1B visas issued during a fiscal year. Please note this is only for New applicants. If you have previously been subject to cap and are seeking an extension or change of employer then you are not cap subject.

Generally H-1B visa is granted for three years. It may then be extended for up to an additional three years. In some cases where an applicant does not hold licensure the U.S. Citizenship & Immigration Services may grant one year to allow that person to obtain a license and later extend.

H-1B holders may bring their dependents on H-1B visa. The spouse and unmarried children under 21 years old are entitled to an H-4 visa and can stay as long as long as the principal H-1B holder maintains status.

If you file your H-1B petition with over 6 months left for your the practical training period , you should have your H-1B ready by the time you are out of training.

If the H-1B petition is filed on April 1, and accepted into lottery before the expiry of your OPT period but your OPT status expires before October 1, you may qualify for a cap gap extension which will allow you to continue working.

If your OPT has already expired prior to the April 1st filing date and you are in a sixty day grace period you may remain in the U.S. until October 1st, but you cannot legally work until the H-1B is approved. For more information please contact our office.

L-1 visa is a nonimmigrant visa which allows foreign nationals being transferred by their current employer to enter into the U.S. to manage an organization or a major function or division of any related organization.

To qualify for an L-1 visa, your:

U.S. company to which you are being transferred must be a branch, subsidiary, affiliate or joint venture partner of your non-U.S. employer

Employment in the U.S. company must be as a manager, executive or person with specialized knowledge and skills

On L-1 visa, you may be approved for up to three years. Extensions of two years at a time may be allowed until you have been in the U.S. for a maximum of seven years if you are a manager or executive, and only five years if you are a specialized knowledge employee.

For transferees who come in under L-1A as managers and executives they can be processed in the EB-1 ‘priority workers’ category. This means that you can begin the permanent residency without having to undergo the time consuming labor certification process.

L-2 visas may be issued to the dependents of US L-1 visa holders. Dependents include the spouse and unmarried children below 21 years of age. In addition, the L-2 spouse of an L-1 visa holder can apply for Employment Authorization.

The TN visa enables Canadian and Mexican citizens to be admitted to the U.S. to temporarily engage in business activities at a professional level in certain fields, for one or more employers.

Applicants

You are eligible for this visa if you are a citizen of Mexico or Canada who works in a professional occupation and:

• Your profession is on the NAFTA list
• You possess the specific criteria for that profession
• Your prospective position requires someone in that professional capacity
• You are going to work for a U.S. employer

Yes, your spouse and unmarried, minor children are entitled to enter the U.S. on derivative TD status.

PERM stands for Program Electronic Review Management (PERM) and is step one of the Green Card through Employment process. It is is also known as PERM labor certification. Before a U.S. employer can file an immigration petition (I-140) for a foreign worker with U.S. Citizenship and Immigration Services (USCIS) the employer must first obtain an approved labor certification from the Department of Labor (DOL).

During the PERM process the employer must conduct a series of recruitment activities to test the labor market before filing an application. If the employer is unable to fill the position with an able, willing, qualified worker then the employer can file an application with the U.S. Department of Labor to sponsor the foreign worker who does meet the qualifications.

Employer’s must first file a prevailing wage request with the U.S. Department of Labor on the ICERT website. The wage request will ask detailed information pertaining to the employer, job title, duties, and minimum education and experience required to perform said duties. After a thorough analysis of the Employer’s requirements the U.S. Department of Labor will then issue a wage determination for a specific salary which must be posted on all recruitment steps. The employer will then begin the recruitment process as stipulated in the Code of Federal Regulations (CFR) until it is time to submit the application.

The employer will be required to respond to any inconsistencies in the ETA 9089 Form in addition to any requirements that do not seem reasonable. In addition they will be required to submit all recruitment documentation prepared during the recruitment stage.

Upon approval of the labor certification the employer may then submit the I-140 Immigrant petition for Alien Worker with the Original Certification. In addition the employer must submit documents demonstrating they have the ability to page the wage offered during the PERM process, as well as documents from the beneficiary demonstrating they have the requisite education and/or experience.

An I-140 immigrant petition is the process submitted to U.S. Citizenship & Immigration Services prior to submitting an I-485 Adjustment of Status (Green Card) application. There are many kinds of I-140 categories. Some may require a labor certification and other’s may not. For EB-1 priority workers, outstanding professors or researchers or self petitioning National Interest Waivers (NIW) a labor certification is not required. Most other applicants do require a PERM Labor Certification.

For I-140’s that require a labor certification to be submitted you must turn in the Original Certified ETA 9089 along with documents proving that the Employer (petitioner) has the ability to pay the wage offered on the ETA 9089. Types of documents may be an employer’s most recent tax return, audited financial statements, or paystubs if the beneficiary is already working at the offered wage. In addition to the above requirements for the employer the Beneficiary must also demonstrate that they have the requisite education and or experience as indicated on the ETA 9089.

Your priority date is established at the time your employer filed your ETA 9089 application. Sometimes the Labor Certification process can take between 8-12 months. The date you filed your ETA 9089 with the U.S. Department of Labor is the priority date that the U.S. Citizenship & Immigration Services will issue on your I-797 approval notice.

An I-140 does not grant any benefits for employment authorization. You must have an underlying nonimmigrant status to be able to work in the US.

The I-140 does not expire and there is no time limit on it. Please note however that an employer can withdraw sponsorship at anytime. If the employer withdraws their sponsorship then the I-140 is no longer valid for the purpose of adjusting your status. You may however preserve your original priority date should you find a subsequent I-140 employer who wishes to sponsor you. While they will be required to file a new PERM and I-140, the old priority date will be transferred to the new petition.

A U.S. citizen or lawful permanent resident of the U.S. may file Form I-130, Petition for Alien Relative, to establish their relationship to certain alien relatives who wish to immigrate to the U.S. A separate Form I-130 must be filed for each eligible relative.

U.S. citizens resident in the U.S. must file immigrant visa petitions in the U.S. with the United States Citizenship and Immigration Services (USCIS) office having jurisdiction over their place of residence. All immigrant visa petitions for parents, brothers and sisters, and children over 21 years of age must be filed in the U.S. with the USCIS. U.S. citizens who are resident overseas may file petition at the Embassy for their spouse and unmarried children (below the age of 21) including stepchildren. you will need to check with the Embassy or consulate where you reside to determine if they accept I-130.

As a U.S. citizen you may file Form I-130 for:

• A child (unmarried and under 21 years of age)
• An unmarried son or daughter (over 21 years of age)
• A married son or daughter of any age
• Parents
• Brother or sisters
• Spouse

As a legal permanent resident you may file Form I-130 for:

• Spouse
• A child (unmarried and under 21 years of age)
• An unmarried son or daughter (over 21 years of age)

An affidavit of support is a guarantee to the U.S. government that a Green Card applicant will not become a public charge. The affidavit could be offered by the Green Card sponsor or someone who could provide financial assistance to the applicant in the event that such help would be necessary.

All petitioners, regardless of whether or not they have been working or living in the U.S. since the past three years must submit a notarized Form I-864, Affidavit of Support, for the beneficiaries of your petitions.

Adjustment of Status is a procedure allowing certain foreign nationals already in the U.S. to apply for immigrant status. Foreign nationals admitted to the U.S. in a nonimmigrant, refugee, or parolee category may have their status changed to that of lawful permanent resident if they are eligible to receive an immigrant visa and one is immediately available.

To adjust your status in the U.S., you must submit Form I-485, Application to Register Permanent Residence or Adjust Status.

Yes, if you are inside the U.S. and have filed Form I-485, Application to Register Permanent Residence or Adjust Status, you are eligible to apply for a Work Permit while your case is pending. You should use Form I-765, Application for Employment Authorization to apply for a work permit.

Note: You do not need to apply for a Work Permit once you are granted an immigrant visa or adjust to permanent resident status. As a legal permanent resident, you should receive a permanent resident card that will provide evidence that you have a right to live and work in the U.S. permanently.

Advanced Parole is only necessary if you plan not to have your H-1B visa stamp updated at the Consulate. Advanced Parole (AP) would also be required in the event that you have used your Employment Authorization Document (EAD) for employment either for your primary employer or a secondary employer. In any case, it is always wise to have an approved AP document as a backup plan in the event you are required to travel for emergent reasons and a visit to the Consulate for an updated visa stamp would not be possible.

Filing an EAD is not required unless you want the flexibility to work for your primary employer and/or a secondary employer.

If a foreign national has both a valid H nonimmigrant visa and is eligible for H status and a valid AP document, the H nonimmigrant may be readmitted into H status or be paroled into the US using the AP. If you wish to be granted H status you must present your valid H visa stamp and be admitted in H status. If you wish to enter using your AP, you will be paroled into the US. Generally it is advisable to enter the US as a nonimmigrant visa, if eligible, to maintain the legal rights associated with such nonimmigrant status.