When Immigration Matters

Many students who are pursuing or have completed their studies (usually a degree) in the U.S. on an F1 visa apply for Optional Practical Training (OPT). If approved, they are granted a student visa under which they may remain in the U.S. and work for up to 12 months in order to obtain practical education that compliments their education (note that at the current time, students in qualifying STEM fields are eligible for a 24-month extension instead of a 12-month extension).

For emerging professionals who wish to remain in the U.S., below we highlight four potential options after OPT expires:

Option #1: Apply for an H-1B Visa

Individuals who have a Bachelor’s Degree or advanced certification, as well as an employer to sponsor their petition (note: this is a complex process that must be started months before OPT expires), may be eligible to apply for an H-1B visa. This is a temporary worker visa, and if granted, it can last for up to six years. However, if the individual quits or is terminated by the sponsoring employer, the visa becomes invalid and the individual must either find a new sponsor, or return to their home country within the specified timeframe.

Option #2: Apply for a J-1 Visa

A J-1 visa is typically issued by USCIS to professors, researchers or exchange students. The application must be sponsored by an academic institution, government or private business, and the work performed must be primarily focused on teaching, consulting, or carrying out specialized research. As with the H-1B visa, this position must not eliminate a job for a similarly qualified and available U.S. citizen.

Option #3: Start a Business

Individuals who have the means to launch a start-up may qualify for various permanent immigration visas, including those in the EB-5 category that are available for petitioners with specialized knowledge or advanced degrees.

Option #4: Go Back to School

Individuals may be allowed to maintain their F1 visa if they return to school to pursue an advanced degree (Master’s or PhD). This option is sometimes selected by those who were unable to obtain an H-1B visa due to the limited supply available each year.

Learn More

All of the above options involve complex application processes and very specific timelines and deadlines — especially for those wishing to apply for an H-1B visa. If you wish to explore any of these options after OPT expires, contact the Pollak PLLC team today. We are here to help!  

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

One of the most important questions that we receive here at Pollak PLLC is, “What is the difference between a permanent resident and a U.S. citizen?” First of all, while these terms are often used interchangeably on the web, and even by some people in the media, they are categorically different. Here is an overview of each designation.

Permanent Residents

A permanent resident is an individual who is lawfully permitted to live in the United States. Contrary to what many people believe, permanent resident status is indefinite — though it can be revoked if certain transgressions are committed, including but not limited to:

• Leaving the U.S. at any time for more than a year. Note that technically, permanent residents may be deemed to have abandoned their status by leaving the U.S. for a single day. However, USCIS typically begins scrutinizing an individual’s intentions if they are out of the country for six months or longer.  
• Committing certain serious crimes or security violations.
• Failing to advise USCIS of a change of address. Historically, breaching this requirement has not typically resulted in deportation. However, it is not something that permanent residents should treat lightly (i.e. it is not on the same level as updating USPS or phone companies, etc.). And in today’s rather volatile and uncertain political climate, avoiding any and all transgressions — however seemingly minor — is certainly prudent.

Permanent residents may also legally work in the U.S. and petition USCIS to have their spouse and any unmarried children under age 21 join them in the U.S. However, be advised that there is a limited pool of immigration visas available to family members (referred to as “preference relatives”), and the waiting list is several years long.

In addition, permanent residents do not have to abandon their native citizenship, but if they leave the U.S., they must travel with their valid passport and permanent resident card (a.k.a. green card). Without these documents, they will not be allowed to re-enter the U.S.

Permanent residents cannot vote in U.S. elections at any level. After living in the U.S. for a few years — usually around five or six — they can apply for U.S. citizenship, provided that they demonstrate good conduct, can read, speak, and write English to an acceptable standard, and successfully pass a test on U.S. history and government.

U.S. Citizens

Naturalized U.S. citizens are eligible to receive a U.S. passport and can leave and re-enter the U.S. as often as they wish, for as long as they wish. While they are obviously subject to the same laws and rules as all travelers (e.g. no violating customs laws, etc.), U.S. citizens cannot be denied re-entry to the U.S. or deported to their native country for committing any crime or security violation — unless it is established that they committed fraud to obtain their citizenship status.

U.S. citizens can also vote in U.S. elections at all levels, obtain government jobs that are (legally) designated for U.S. citizens only, and they may also serve on juries. In addition, some government benefits, scholarships and grants are only offered to U.S. citizens. 

The category of “preference relatives” for U.S. citizens is larger than that for permanent residents. In addition to spouses and unmarried children under 21, it also includes married children, children over 21 years of age, and siblings. However, the immigration process for relatives is very time consuming and often takes several years (especially for siblings).

Learn More 

The process of applying for either permanent resident status (a.k.a. a green card) or naturalized U.S. citizenship is complex and detailed. Errors and omissions will cause petitions to be delayed or denied. To learn more and have your questions clearly and fully answered, contact the Pollak PLLC team today. We are here to help!  

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

The EB3 visa is a preference category for individuals who are designated by USCIS as a Skilled Worker, Professional, or “Other Worker” (i.e. unskilled labor). Each of these sub-categories is outlined below.

EB3 Visa Eligibility Requirements for Skilled Workers 

Individuals who wish to apply for an EB3 visa under the Skilled Workers sub-category must:

• have at least (and be able to prove) at least two years of job experience or training;
• not be performing a job that is of a seasonal, temporary or part-time nature;
• not be performing work for which qualified workers in the U.S. are unavailable.

In conjunction with their prospective employer, petitioners must first obtain certification from the Department of Labor verifying all of the above.

EB3 Visa Eligibility Requirements for Professionals

Individuals who wish to apply for an EB3 visa under the Professionals sub-category must:

• have a B.A. degree from an accredited U.S. college or university, or an approved foreign degree equivalent (note: education combined with experience is not viewed by USCIS as an equivalent);
• demonstrate that a B.A. degree is the normal requirement for the U.S.-based position they wish to attain (note: USCIS deems it irrelevant if a B.A. degree is required for a similar job in the petitioner’s native country);
• establish a clear connection between the B.A. degree that the petitioner has achieved and the type of B.A. degree that is required for entry to the position they wish to obtain (i.e. if the petitioner’s B.A. degree is in nursing, and position requires a B.A. degree in engineering, USCIS will deem that this eligibility criteria has not been met and will reject the petition);
• not be performing work for which qualified workers in the U.S. are unavailable.

As with the skilled workers category, petitioners who wish to obtain an EB3 visa as a professional must obtain certification from the Department of Labor verifying all of the above.     

EB3 Visa Eligibility Requirements for “Other Workers”

The “Other Workers” sub-category is for unskilled workers who wish to live and work in the U.S. Petitioner must:

• be capable at the time of filing their petition of performing unskilled labor (USCIS defines this as labor requiring less than two years of training or experience);
• not be performing a job that is of a seasonal, temporary or part-time nature;
• not be performing work for which qualified workers in the U.S. are unavailable.

Again, petitioners who wish to obtain an EB3 visa as unskilled workers must obtain certification from the Department of Labor verifying all of the above. In addition, there is currently lengthy backlog for this sub-category. USCIS periodically updates this via monthly bulletins on their website at: http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html. 

Family Members

Petitioners who successfully obtain an EB3 visa may request that their spouse and minor children (under the age of 21) join them in the U.S. If granted, spouses of EB3 visa holders are eligible to file for an Employment Authorization Document to legally earn income while they are applying for permanent resident status (i.e. green card).

Learn More 

The process of applying for an EB3 process is very complex and extremely detailed. Significant effort and coordination is required on the part of employers, and petitioners must ensure that their application is complete, compliant and 100% error-free.

To learn more, contact the Pollak Immigration team today. We will clearly and thoroughly answer your questions, help you fully understand the rules and requirements of all visa preference categories to which you may be eligible, and completely support you step-by-step if you and your employer wish to move ahead with a petition.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

The EB5 visa was launched by Congress in 1990 and is administered by U.S. Citizenship and Immigration Services (USCIS). The fundamental purpose of the program is to stimulate economic activity, capital investment and job creation through investments by foreign investors who want to live in the U.S.  

• Investing $1,000,000 and hiring 10 full-time employees anywhere in the U.S.
• Investing $500,000 and hiring 10 full-time employees in a high unemployment area or a rural area.
• Investing either $1,000,000 or $500,000 (if the investment is made in a high unemployment area or rural area) in a designated Regional Center, and creating 10 full-time indirect or induced jobs.

Investment Requirements

All EB5 investors must invest in what USCIS designates as a new commercial enterprise. This is a business that meets either of the following requirements:

• It was established on or before November 29, 1990, and the investment will fund restructuring and/or reorganizing such that the enterprise effectively becomes new again; or the investment will result in at least a 40 percent increase in the business’s net worth or employee headcount.
• It was established on or after November 30, 1990.

The investment itself does not necessarily have to be in cash. It can partly or wholly take the form of inventory, equipment, tangible property, cash equivalents or secured indebtedness.  

Job Creation Requirements

As noted, job creation is one of the pillars of the EB5 visa program. Foreign investors who invest $1,000,000 must create 10 full-time positions anywhere in the U.S. Those who make their investment in a high unemployment area or a rural area (which USCIS refers to as a Targeted Employment Area or TEA) can reduce their commitment to $500,000.

A high unemployment area is defined as one where the unemployment rate is at least 150% that of the national average. A rural area is defined as an area that is outside a metropolitan statistical area (MSA) and has a population of less than 20,000 (based on the most recent census data).

Foreign investors who allocate their $1,000,000 or $500,000 investment to a USCIS-approved Regional Center do not have to create 10 full-time jobs. Instead, they must prove that their investment creates (at least) 10 indirect jobs or 10 induced jobs.

Indirect jobs are defined as jobs within the community that are created to provide goods or services to the Regional Center project. Induced jobs are defined as jobs within the community that are or will be created as a result of income spent by employees working on the Regional Center project.  

Investing in Troubled Businesses

In some cases, a foreign investor may also be allowed to invest in what USCIS deems a “troubled business,” and satisfy the job creation requirements by preventing job loss (i.e. maintaining 10 full time jobs that would otherwise be in jeopardy of being eliminated). A troubled business meets all of the following requirements:

• The business has been operating for at least 24 months.
• The business has experienced a net loss in the 12 or 24-month period immediately preceding the priority date on the EB5 investor’s Form I-526.
• The loss for the period in question was at least 20% of the business’s net worth.
• The business employs at least 10 full-time employees, and is expected to maintain at least this level of employment for the next 36-42 months.

It is important to note that the process of designating a business as troubled for the purposes of EB5 investment is complex and time consuming. This is because USCIS conducts extensive diligence to ensure that such businesses are indeed facing imminent workforce terminations or layoffs.  

Additional Details

Investors are not obligated to provide day-to-day management in any business that is associated with their EB5 visa. They are also not obligated to be the majority owner or the sole investor, and they can live anywhere within the U.S. They can also petition to have their spouse and children (under 21 years of age) join them in the U.S. as part of the EB5 visa.

Learn More

The EB5 visa program is complicated and requires extensive documentation. To learn more, contact the Pollak Immigration team today. We will learn about your unique situation and immigration objectives, clearly answer your questions regarding the EB5 visa program — as well as other programs that may be an option for you or your family members — and help you create a solid, complete, timely and impressive application.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

Karen-Lee was featured in Law360's Expert Analysis Section writing about President Trump's deportation plan.  

As part of President Trump’s massive deportation plan, several anti-immigration bills have recently come before the U.S. House of Representatives that focus on immigration enforcement. On May 24, 2017, the House Judiciary Committee passed three bills — the “Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act” (the Davis Act), H.R. 2406, and H.R. 2407. And on the evening of June 7, 2017, the House passed The Anti-Border Corruption Reauthorization Act (H.R. 2213). These four bills create an unprecedented expansion of immigration enforcement.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

The H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation for a period of three years. The visa can be extended for an additional three years. The employer can also employ the employee part-time.

Public Access File 

Regulations require that the employer maintain a public access file which is to be made available for public inspection. As part of the LCA and H-1B visa petition process, the employer must agree to make certain information relating to the LCA available for public examination at the employer’s principal place of business in the U.S. or at the place of employment within one working day after the date on which the LCA is filed with the Department of Labor. Such information is referred to as the Public Access File and should consist of the following items: 

• A copy of the LCA and related cover pages.
• Documentation providing the wage rate to be paid to the employee.
• A detailed explanation of the employer’s system used to set the actual wage to be paid to the employee.
• Documentation used by the employer to determine the prevailing wage.
• Documentation evidencing that the employer has complied with the union employee notification requirements, if there is a union.
• A summary of the employer’s benefits offered to U.S. workers in the same occupational classification, an explanation regarding the difference in benefits offered to such employees if all employees in the same occupational classification are not offered the same benefits and, if applicable, an explanation of any home-country benefits the employee will receive.
• Additional information is required to be placed in the Public Access File if the employer is H-1B dependent or a willful violator.

The employer should maintain a Public Access File for each employee and should keep this file separate from the employee’s personnel file. The Public Access File must be maintained by the employer for at least one year past the date of the employee’s related employment. 

Additional requirements for H-1B dependent employers. Employers are considered to be dependent if they have less than 25 workers and more than 7 H-1B workers; between 26 to 50 workers and more than 12 H-1B workers; or more than 50 workers with 15% or more of them being H-1B foreign nationals. In this case, H-1B dependent employer must fulfill 2 additional requirements. Displacement of US workers: An H-1B dependent employer must attest that by hiring a H-1B worker, it is not displacing any US worker for a similar position within 90 days before or after filing a H-1B petition. 

Recruitment efforts: The H-1B dependent employer must also attest to making good faith attempts to recruit US workers and offering prevailing wages for this position. 

Terminating an H-1B Visa Holder

Upon terminating an H-1B visa holder, the employer is obligated to pay for the reasonable costs associated with the employee’s return flight home. In most instances, this is not an issue because typically when an H-1B visa holder leaves one employment, he or she is accepting another employment opportunity and, as a result, does not return to his or her home country. 

When Should You File?

The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap.  

Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date. In recent years there has been more H-1B applications than visas available so USCIS has resorted to a lottery system in selecting H-1B visa applications for adjudication.

Learn More

To learn more about how to sponsor an employee on an H-1B specialty occupation visa, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

The H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation for a period of three years. The visa can be extended for an additional three years. The employer can also employ the employee part-time.

Employer Responsibilities 

The first step in the H-1B process is to submit a Labor Condition Application (LCA) to the Department of Labor (Form ETA 9035). The LCA contains a number of important attestations that the employer agrees to. They are the following:

• Agree to pay the prevailing wage: The actual wage is the wage that the company has set for the position for all employees with similar experience and skill. Usually, the prevailing wage is a wage set by the Department of Labor. The employer must pay the higher of the two wages. If the employee is employed part-time then the salary will be the hourly prevailing wage for the position or the actual hourly salary whichever is higher.
• Working conditions: The employer must state that employing the foreign national will not adversely affect the working conditions of other similarly employed workers.
• Strikes, lockouts, and work stoppages: If any of these develop after the Labor Condition Application is filed with the Department of Labor, the petitioning employer must inform the Department of Labor.
• Notice regarding the LCA: employers must provide notice of the LCA to its employees through posting the LCA on the premises for at least ten business days. The posting must be done in two different conspicuous locations.

Next Topic - Public Access File

The next topic covered in our four part series on the H-1B specialty occupation visa will discuss public access file.

Learn More

To learn more about how to sponsor an employee on an H-1B visa, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

The H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation for a period of three years. The visa can be extended for an additional three years. The employer can also employ the employee part-time.

Filing Fees 

• Standard (Base Filing) Fee: The standard (base) H-1B visa processing fee is $460 and this is for the I-129 petition. This H1B visa fee is also applicable to transfers, amendments and renewals. 
• ACWIA (Training) Fee: For employers who have between 1-25 full-time workers, the American Competitiveness and Workforce Improvement Act fee is $750. For employers with 26+ full-time employees, the fee is $1,500. Some organizations are exempt from this training fee including non-profits with affiliations to educational institutions, governmental research organizations and primary/secondary educational institutions. 
• Fraud Prevention & Detection Fee: This $500 fee is applicable to new H-1B petitioners or those changing employers. This H-1B visa fee is not required for extensions with the same sponsoring employer.
• Public Law 111-230 Fee: This H-1B visa fee is applicable to companies that have upwards of 50 employees with over half on H-1B or L1 status. The PL 111-230 was suspended in October 2015, but was replaced by PL 114-113 on December 18, 2015. This law requires H-1B petitioners that employ 50 or more employees in the United States if more than 50 percent of these employees are in H-1B, L-1A or L-1B nonimmigrant status to pay an additional $4,000 per applicant
• Optional H-1B Visa Fees: Premium processing is an option available to those who want to expedite the H-1B visa process. This service is offered by the Department of Homeland Security and guarantees a 15-day time frame. In order to do so you must complete form I-907 along with the $1225 fee. Again, this is one of the optional H-1B visa fees. Another option is to have family members apply to be dependents of the petitioner by filing out Form I-539. Currently, United States Citizenship and Immigration Service has suspended premium processing and it is not available.

Fee Breakdown

Who Pays Filing & Legal Fees 

• For legal fees the H-1B employer cannot require that an employee pay for or reimburse the employer for attorney fees associated with an H-1B Visa.
• The employer is required to sign an attestation in the labor condition application that they paid the fees and that they will not seek reimbursement from the employee.
• The same rule applies to most filing fees except that the employee can pay the premium processing fee

Next Topic - Employer Responsibilities

The next topic covered in our four part series on the H-1B specialty occupation visa will discuss employer responsibilities.

Learn More

To learn more about how to sponsor an employee on an H-1B visa, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

The H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation for a period of three years. The visa can be extended for an additional three years. The employer can also employ the employee part-time.

Must Be a Specialty Position 

• A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position; 
• The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor's degree in a field related to the position;
• The employer normally requires a degree or its equivalent for the position; or
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree. 

Next Topic - Filing Fees

The next topic covered in our four part series on the H-1B specialty occupation visa will discuss filing fees.

Learn More

To learn more about how to sponsor an employee on an H-1B visa, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

When a U.S. citizen is not available to fill a position, many employers across the country want or need to sponsor an employee for a work visa. While the process is detailed and complex, here are some fundamental things to keep in mind if this scenario applies (or might soon apply) in your organization:

• Permanent or Temporary? 

The first thing to determine is whether the employee that you wish to sponsor for a work visa would fill a permanent or a temporary position.

• Sponsoring Permanent Workers

If the position is permanent, then the foreign employee may apply for permanent residence (a.k.a. “a green card”), provided they have unique skills that fit into one of the five preference categories (noted below). As the prospective employer, you will also need to demonstrate to the Department of Labor’s satisfaction that hiring them will not displace a U.S. worker, or have a negative impact on wages or working conditions for U.S. workers.    

• Permanent Worker Visa Preference Categories 

There are five permanent worker visa preference categories: First Preference EB-1, Second Preference EB-2, Third Preference EB-3, Fourth Preference EB-4, and Fifth Preference EB-5 (note that EB-5 is for investors, and so typically will not apply to employers who wish to sponsor foreign employees). For a description of each preference category, click here.

• Sponsoring Temporary Workers

The USCIC has several nonimmigrant categories of temporary workers (noted below). As part of the sponsorship application, you will have to attest to certain commitment and conditions, including that: you will pay a wage that is no less than that paid to similarly qualified workers in the geographic area; you will provide working conditions that will not negatively impact other similarly employed workers; there is no strike or lockout where the sponsored employee would be working. 

• Temporary (Nonimmigrant) Worker Categories

As noted, USCIS offers several non-immigrant categories of temporary workers, including (but not limited to): H1B Visa - Specialty Occupation; O1 Visa - Extraordinary Ability; L1 - Intracompany Transferee; TN Visa - Nonimmigrant NAFTA Professional. For a description of each category, click here.

• Working with an Experienced Team

To learn more about how to sponsor an employee for a work visa, contact the experienced Pollak team today. We will help you clearly understand the rules and process — including those that have recently changed and may shift in the near future — and ensure that your application to the USCIS is complete, accurate and timely. Contact us to learn more.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

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